Amendment Power Research Articles

Unconstitutional Constitutional Amendments: Between Contradiction and Necessity

The idea of an unconstitutional constitutional amendment is apt to puzzle some constitutionalists. It is thought to involve an inherent paradox or at least to be deeply undemocratic, denying to the people control of their own constitutional future. This idea that, which I will call the ‘contradiction thesis’, is taken to task Unconstitutional Constitutional Amendments. Yaniv Roznai seeks to unscramble these apparent contradictions, to provide a secure theoretical foundation for the idea constitutional unamendability and to resolve its tensions with democracy. This argument is ambitious in its scope and its global comparative reach. Roznai does not limit himself to justifying explicit limitations placed on the power of amendment nor to limitations that go only to process. Rather, Roznai argues that amendment powers are always subject to limitations of substance and procedure and that these limitations may be implicit as well as explicit. In this short essay argues the Roznai successfully unscrambles the apparent conceptual confusion in the idea of an unconstitutional constitutional amendment. It does not, however, successfully show that the recognition of a doctrine of unamendability, at least in its substantive and implicit forms, is a necessary consequence of constitutionalism. A full justification for a doctrine of unamendability depends, more than Roznai recognises, on the nature of a given constitutional order.

On Yaniv Roznai’s Theory of Substantive Unamendability. Y. Roznai, Unconstitutional Constitutional Amendments: The Limits of Amendment Powers, (Oxford University Press 2017), 368 p.

On Yaniv Roznai’s Theory of Substantive Unamendability - Y. Roznai, Unconstitutional Constitutional Amendments: The Limits of Amendment Powers, (Oxford University Press 2017), 368 p. - Volume 13 Issue 4

Transnational constitutionalism and a limited doctrine of unconstitutional constitutional amendment: A reply to Rosalind Dixon and David Landau

As Rosalind Dixon and David Landau observe in their article, Transnational Constitutionalism and a Limited Doctrine of Unconstitutional Amendment (International Journal of Constitutional Law, vol.13, no. 3, pp. 606-638, 2015) the breakdown of constitutional democracy is a central fear of contemporary politics. On their account abusive constitutional amendments are central techniques for democratic backsliding, and judicial review of such amendments is justified on the basis that it safeguards democracy from itself. But on their account, the assertion of such a judicial power carries a potential danger -- that courts could overreach and second-guess constitutional amendments which do not pose an existential threat to constitutional democracy. I engage Dixon and Landau on two points. First, I suggest that comparative constitutional law should premise its analysis of the problem of democratic backsliding not on the problem of unconstitutional constitutional amendments, but rather on a broader inventory of the various legal tools used by autocrats that enable democratic backsliding, which encompasses the abuse of the power of constitutional amendment but extends well beyond it. Secondary, the more likely scenario is not that courts will overreach, but rather than they will fail to call democratic backsliding by its name, which raises important strategic questions for courts on whether to embrace the power to declare constitutional amendments unconstitutional and on what basis, or to calibrate the combination of justification and judicial control differently.

EVER CLOSER REMOTENESS OF THE PEOPLES OF EUROPE? LIMITS ON THE POWER OF AMENDMENT AND NATIONAL CONSTITUENT POWER

AbstractIt might seem counter-intuitive to suggest that the chasm between Europe and her citizens is partially caused by the weakening of constituent power at the national level. Nonetheless, this article contends that the strength of ever closer union depends partly on the resilience of national constituent power. An insight recovered from French constitutional theory – that respect for constituent power is closely related to respect for limits on the power of amendment – is used as a measure of this resilience. Upon examination of judicial decisions in Germany and Spain in which enumerated substantive limits on the power of amendment have not been satisfactorily enforced, and others in Ireland and France in which the existence of essential limits on the power of amendment has been flatly denied, this article concludes that by debilitating national constituent power, ironically treaty ratifications conduce to ever closer remoteness between the peoples of Europe.

Unconstitutional Constitutional Amendments in European Union Law: Considering the Existence of Substantive Constraints on Treaty Revision

The issue of unconstitutional constitutional amendments is extremely topical in the field of national and comparative constitutional law. In a recent article (2013), Roznai signals that ‘the global trend is moving towards accepting the idea of limitations—explicit or implicit— on constitutional amendment power’. But what about the ‘supranational’ EU? Would there be room to argue that substantive limitations of amendability—explicit or implicit—also exist as regards the EU Treaties? Furthermore, if so, would the Court of Justice of the European Union (CJEU) have the competence to enforce such limits? These questions are the central focus of this article. We argue that accepting the idea of substantive requirements of Treaty revision may be one of the next important steps in the ongoing process of EU constitutionalisation. In the first part of the article, we explore what kind of arguments are being used to justify a doctrine of unconstitutional constitutional amendments in national systems. Next, we ascertain to what extent such arguments can be used to justify a doctrine of unconstitutional constitutional amendment in EU law. In conclusion, we argue that it is quite conceivable that certain EU Treaty amendments would indeed be deemed to be a violation of the Treaties. Moreover, we contend that it is not unimaginable that the CJEU will assume the power to substantively review amendments to the EU Treaties, in cases where the Member States would choose to put forth suspect revisions to these documents.

The Doctrine of 'Basic Structure' of the Indian Constitution: A Critique

The ‘Doctrine of Basic Structure’ is a judge-made doctrine which was propounded by the Indian Judiciary on 24th April 1973 in Keshavananda Bharati Sripadagalvaru case to put a limitation on the amending powers of the Parliament so that the ‘basic structure of the basic law of the land’ cannot be amended in exercise of its ‘constituent power’ under the Constitution. Though attempt was first made in the year 1967 in Golakh Nath case by M. K. Nambyar to get it approved in the name of ‘necessary implied restraint on the amending power of the Parliament’ but it took almost half decade for the Indian judiciary to overcome its hesitancy and pronounce it in Keshavananda case the same thing what German Professor Dietrich Conrad already said in his lecture that he delivered in India in 1965. The Constitution-makers gave the power to amend the Constitution of India in the hands of the Parliament so as to cope up with the changing needs and demands of ‘we the people’ under Article 368 and to make the Constitution 'stand amended' but the Parliament in exercise of its constituent power under Article 368 of the Indian Constitution can amend any of the provisions of the Constitution and this power empowers the Parliament to amend even Article 368 itself which might led the Constitution of India opposite of 'stand amended' i.e., 'sit amended'. Such unlimited power of amendment in the hand of Parliament without defined limit raises number of questions like, is not there any limitation on the amending powers of the Parliament? If the answer of this question is not in affirmative with a reason that the Constitution makers did not intended for such limitation otherwise they would have provided for such limitations in the Constitution, then another question arises to what extent can the Parliament amend the basic law of the land? And if there will be no limitation on the amending power of the Parliament, are there not chances that this power of amendment in the name of ‘constituent power’ can be abused? Such raised propositions in this paper are covered and discussed under various Parts. Part II covers the constitutional concept of the ‘Basic Structure’ doctrine. The judicial journey and development of the ‘Basic Structure’ doctrine has been covered from Shankari Prasad v. Union of India (1951) in Part III, Sajjan Singh v. State of Rajasthan(1965) in Part IV, I. C. Golakhnath v. State of Punjab (1967) in Part V and finally the Keshavananda Bharati v. State of Kerala (1973) in Part VI. The constitutional-unconstitutional game that Parliament played in the name of Ninth Schedule of the Constitution has been covered in Part VII where the Hon’ble Supreme Court applied the doctrine of 24th April 1973 in the I. R. Coelho case (2007). Part VIII deals with the Pramati Educational and Cultural Trust case (2014) where the Supreme Court applied the Basic Structure doctrine and declared that Articles 15(5) and 21-A of the Indian Constitution are in consonance with the spirit of the doctrine and are not violative of the Basic Structure doctrine. Part IX covers the test of Basic Structure doctrine with the recapitulating words in Part X. Indeed, there is a Presumption of Constitutionality when the questions arises as to the validity or the constitutionality of any particular provision or provisions of the Constitution which has to be proved beyond all reasonable doubt by the person challenging the said provision or the constitutional notion. In this regard, another question on the same footing of John Rawl’s theory of basic structure of the society arises here that this paper seeks to answer through judicial pronouncements, is the basic structure basic?

Transnational constitutionalism and a limited doctrine of unconstitutional constitutional amendment

A deep tension exists in many parts of the world between commitments to democracy and procedures for constitutional amendment. Amendments are frequently passed that follow formal democratic procedures but are aimed at achieving anti-democratic or “abusive” constitutional aims—i.e., to help powerful presidents extend their term in office, to remove parliamentary or federalism-based checks on executive power, and to narrow or suspend basic human rights protections. Limiting a power of constitutional amendment, therefore, can have clear democratic benefits. One way to do this is via a judicially enforceable doctrine of “unconstitutional constitutional amendment.” While such a doctrine may not be a complete solution to anti-democratic uses of constitutional amendment powers, it can create an additional hurdle to change. But such a doctrine should be approached with caution from a democratic perspective, because it can also create a significant road-block to the legitimate use of amendment procedures as a means of overriding courts decisions deemed unreasonable or unacceptable by a majority of citizens. In order to promote democracy rather than undermine it, any doctrine of unconstitutional constitutional amendment must be limited in scope. This article argues that because threats to a democratic order are so varied, and can be altered or staged by would-be authoritarian actors, limiting the doctrine to a narrow set of institutional provisions or principles defined ex ante is unlikely to be a stable solution . Instead, courts must rely on a broader doctrine that is nonetheless limited to constitutional amendments that clearly pose a substantial threat to core democratic values. This article also argues that an effective way to limit the use of such a doctrine is by tying its use to transnational constitutional norms. Engagement with transnational constitutional law will help to limit both the kinds of principles courts define as fundamental and the sorts of institutional changes that are alleged to pose a substantial threat to those principles. The article shows how engagement with transnational materials can serve as a workable check on a doctrine of unconstitutional constitutional amendment, helping to separate cases where the doctrine must be deployed to defend democracy from cases where its use is unnecessary.

Towards a Theory of Unamendability

This article stems from a single puzzle: how can constitutional amendments be unconstitutional? Adopting a combination of theoretical and comparative enquiries, this article focuses on the question of substantive limitations on the amendment power, looking at both their prevalence in practice and the conceptual coherence of the very idea of limitations to constitutional amendment powers. The article constructs a general theory of unamendability, which explains the nature and scope of amendment powers. The theory of unamendability identifies and develops a middle ground between constituent power and pure constituted power, a middle ground that is suggested by the French literature on ‘derived constituent power’. Undergirding the discussion, therefore, is a simple yet fundamental distinction between primary constituent (constitution-making) power and secondary constituent (constitution-amending) power. This distinction, understood in terms of an act of delegation of powers, enables the construction of a theory of the limited (explicitly or implicitly) scope of secondary constituent powers. The theory of unamendability aims to clarify the puzzle of unconstitutional constitutional amendments.

Unconstitutional Constitutional Amendments in European Union Law: Considering the Existence of Substantive Constraints on Treaty Revision

The issue of unconstitutional constitutional amendments is extremely topical in the field of na-tional and comparative constitutional law. In a recent article (2013), Roznai signals that ‘the global trend is moving towards accepting the idea of limitations – explicit or implicit – on constitutional amendment power’. But what about the ‘supranational’ EU? Would there be room to argue that substantive limitations of amendability – explicit or implicit – also exist as regards the EU Treaties? Furthermore, if so, would the Court of Justice of the European Union (CJEU) have the competence to enforce such limits? These questions are the central focus of this article. We argue that accepting the idea of substantive requirements of Treaty revision may be one of the next important steps in the ongoing process of EU constitutionalisation. In the first part of the article, we explore what kind of arguments are being used to justify a doctrine of unconstitutional constitutional amendments in national systems. Next, we ascertain to what extent such arguments can be used to justify a doc-trine of unconstitutional constitutional amendment in EU law. In conclusion, we argue that it is quite conceivable that certain EU Treaty amendments would indeed be deemed a violation of the Treaties. Moreover, we contend that it is not unimaginable that the CJEU will assume the power to substantively review amendments to the EU Treaties, in cases where the Member States would choose to put forth suspect revisions to these documents.

Free at Last: Rejecting Equal Sovereignty and Restoring the Constitutional Right to Vote: Shelby County v. Holder

Free at Last: Rejecting Equal Sovereignty and Restoring the Constitutional Right to Vote: Shelby County v. Holder

Evaluation des propriétés fourragères, agronomiques et calorifiques du foin de marais issu de la Réserve naturelle nationale du Marais de Lavours

Evaluation of fodder, agronomie and calorific properties of the Réserve naturelle nationale du Marais de Lavours (Ain) marsh hay. - Marsh hay, named «blache» in the French Haut-Rhône region, used to be an important resource for local people near the Lavours marsh. Today, Réserve naturelle nationale du Marais de Lavours managers have difficulties to value this marsh hay, as other wetlands managers. However, this study shows that the properties of marsh hay could give several valuations for this material. Its fodder value is suitable for cattle, even for lactating cows, but its lack of mineral elements should be compensated by a complementation. It could be transformed in a good compost with a strong amendment power ; however, marsh hay is better for co-compost in association with breeding effluents. Its calorific power is excellent and its low silica rate allows a weak fouling of burning chambers.

Unconstitutional Constitutional Amendments—The Migration and Success of a Constitutional Idea

Can a constitutional amendment be unconstitutional? Prima facie, this seems like a paradox. This vexing issue has attracted increased attention in recent years. Whereas the definition of the nature of constitutional amendment power is among the most abstract questions of constitutional theory, the question of limits on constitutional amendments is not purely of academic interest. It has practical application; the issue has already been adjudicated in numerous countries and is likely to arise, sooner or later, in other countries as well. This issue of limits is a fundamental one and much could be gained from comparative study. This Article aims to trace the migration of limited amendment power and of judicial review of constitutional amendments through different jurisdictions and to paint a broad pattern of “constitutional behavior.” It appears that the global trend is moving towards accepting the idea of limitations - explicit or implicit - on constitutional amendment power. Bearing in mind the difficulties of borrowing (or transplanting) constitutional ideas from different jurisdictions into other legal cultures, this Article claims that limitations upon the amendment power is just one example of the larger phenomenon of the migration of legal ideas. At times, the notion of limited amendment power migrated intact into other jurisdictions, but on other occasions it also absorbed local content, primarily to acknowledge prior events and past experiences. The fact that this concept traveled across continents and entered different legal systems shows that borrowing a constitutional idea can be successful, even within very dissimilar legal systems. This comparative investigation into the origins and the migration of the idea of limits to the amending power will highlight the uniqueness of each legal system and unravel the conundrum of unconstitutional constitutional amendments itself.

The (in)significant role of the legislature in the budgetary process

Although previous research has argued that only institutions matter for the amendment power of the legislature, this paper investigated the effects of political factors by calculating policy/ideological distances among parties. As with the findings of the previous research, the estimation demonstrates that several institutions determine the legislative power of the budget. Moreover, it also clarifies that the legislature is more prone to amend the budget if policy/ideological distance between parties in the government decreases. This means that the government submits the budget which benefits for every party. Thus, parties will not amend the budget. The results, furthermore, demonstrate that the legislature is more likely to amend the budget as policy/ideological distance between parties in the legislature decreases. This suggests that parties cannot find any policy agreements when the policy/ideological positions of parties in the legislature are far from each other.

An unconstitutional constitutional amendment--The Turkish perspective: A comment on the Turkish Constitutional Court's headscarf decision

In June 2008, the Turkish Constitutional Court annulled amendments to the Constitution regarding the principle of equality and the right to education, which had been enacted by parliament in order to abolish the headscarf ban in universities. In an important and controversial decision, the Constitutional Court ruled that the amendments were unconstitutional because they infringed on the constitutional provision mandating a secular state. In this paper, the authors set forth the historical and legal background to the Turkish Constitutional Court headscarf case, review the facts and decision of the case, and analyze it. The authors accept the Constitutional Court's conclusion that parliament's amendment power is distinct from the original constituent power and therefore limited. However, the authors assert that the Constitutional Court's competence to review constitutional amendments is restricted to a procedural review. Lastly, the authors claim there was no justification for annulling the amendments because they did not infringe on the constitutionally enshrined principle of state's secularism.

The (In)Significant Role of the Legislature in the Budgetary Process

Although previous research has argued that only institutions matter for the amendment power of the legislature, this paper investigated the effects of political factors by calculating policy/ideological distances among parties. As with the findings of the previous research, the estimation demonstrates that several institutions determine the legislative power of the budget. Moreover, it also clarifies that the legislature is more prone to amend the budget if policy/ideological distance between parties in the government decreases. This means that the government submits the budget which benefits for every party. Thus, parties will not amend the budget. The results, furthermore, demonstrate that the legislature is more likely to amend the budget as policy/ideological distance between parties in the legislature decreases. This suggests that parties cannot find any policy agreements when the policy/ideological positions of parties in the legislature are far from each other.

Birth in the Briar Patch: Charles W. Chesnutt and the Problem of Racial Identity

In his speech Courts and written around 1908, Charles W. Chesnutt faults American government's geographic location for limits and widespread denials of Fourteenth Amendment's power. The government's central location in Washington, D.C. perpetuated racism, Chesnutt argued, for inevitably administration, courts, whole machinery of government takes its tone from its environment (Charles 896). This racism, present within clubs and parlors of South, feeds attitudes of presidents and congressmen and judges toward and therefore, men living in a community where service and courtesy in public places is in large measure denied Negro, there seems to be no particular enormity in separate car laws (897). Chesnutt goes on to reference U. S. Supreme Court's 1896 Plessy v. Ferguson decision, which ruled in favor of Louisiana's segregated railroad cars: under Plessy v. Ferguson, there is no reason why any Northern State may not reproduce in its own borders conditions in Alabama and Georgia. And it may be that Negro and his friends will have to exert themselves to save his rights in North (903). The federal government's southern context, then, both defers any institutional remedy to America's racism and produces racism through association. For Chesnutt, continues to be a structural form of inequality into twentieth century because of regional influence. Race is not an but a legal category, produced by class interest rather than justice, region rather than reason (Charles 895). Chesnutt's view of as a fiction is developed further in a series of essays written for Boston Evening Transcript in 1900 titled Future American. In these essays, Chesnutt envisions complete racial fusion through marriage and reproduction between black and white (862). With this northern mouthpiece, Chesnutt proposes a plan of intermarriage that would eliminate race. In a region less dominated by racial prejudice, Chesnutt sees a possibility for race's elimination as a meaningful category. Chesnutt's views on in late nineteenth century oddly anticipate those of literary critic Walter Benn Michaels in late twentieth century. In Autobiography of an Ex-White Man, referencing James W. Johnson's 1912 novel of biracial passing, Michaels argues that is simply a mistake rather than an identity or even a social construction. According to Michaels' logic, either is an or there is no such thing as race (125). (1) This claim leads him to conclusion that indeed does not exist. In light of this epistemic claim, deduced from both a postmodernist resistance to essence along with biological evidence that is indeed not a meaningful category for genetic research, Michaels finds that the point of our new knowledge--the knowledge that there are no biological races--would be to undo consequences of our old ignorance, to produce a world in which was not a compelling reality (131, emphasis in original). (2) Michaels advocates abandonment not only of racial identification but also of identification in general. In larger scope of Michaels's work--and this argument is broadened to include all of history after 1967 in The Shape of Signifier--identity and ontology are real culprits behind both senselessness of culture in global America and Left's failure to produce a consistent political vision. For Michaels, allows people to claim an that entails contradictory beliefs about what that identification actually commits them to. Accordingly, Michaels argues that diversity is a problematic political project because it puts into practice contradictions of racial identity) Weighing in on contemporary issue of reparations for slavery in The Shape of Signifier, Michaels makes a strong argument against coupling and history. …

Methylation and the Genome: the Power of a Small Amendment

Methylation is a major regulator of mammalian genome function in vivo. The methylation of DNA on cytosine residues is a critical component of the host genome defense pathway against the expansion of repetitive DNA and is central to such epigenetic phenomena as monoallelic expression of genes regulated by imprinting and dosage compensation. Deregulation of the DNA methylation pathway leads to aberrant gene repression in cancer and contributes to cell cycle misregulation. Transcriptional repression of methylated DNA loci results from a poorly understood interplay between various chromatin-based regulatory machines, such as histone deacetylases, and auxiliary pathways. Intranuclear protein methylation also has considerable regulatory impact: this includes the function of histone methyltransferases in establishing regions of transcriptionally inert heterochromatin and of protein methyltransferases in mediating transcriptional activation by the nuclear hormone receptors. An important thermodynamic distinction between methylation and many other covalent modifications of intracellular components-e.g., phosphorylation or acetylation-is the relative chemical stability of the methylated form of an amino acid (typically, lysine or arginine) compared with its cognate acetylated form. Thus, a protein, once methylated, may persist in that state. Together with the well characterized role of DNA methylation in long-term ("epigenetic") modes of gene expression, this points to methylation in general as a chemical modification that is associated with enabling stable patterns of genome behavior. Considering the ubiquity of methylation in genome control pathways, it is possible that dietary imbalance affecting methyl-generating pathways may contribute to genome misregulation and disease etiology by affecting the ability of the nucleus to maintain methylation of its components at physiological levels.

The Section 5 Mystique, Morrison, and the Future of Federal Antidiscrimination Law

The article seeks, first and foremost, to demystify conceptions concerning the Section 5 of the Fourteenth Amendment power of Congress. Properly understood, Section 5 enactments raise no issue of separation of powers. The infirmity of the statute struck down in City of Boerne v. Flores, 521 U.S. 507 (1997), was not due to its provenance in Section 5. Rather, the statute sought directly to enlist the judiciary in implementing a congressional substitute for the equal protection analysis the courts would perform; in effect, Congress was commandeering the courts to do its bidding in the course of engaging in constitutional adjudication. Unlike the statute at issue in Boerne, Section 5 legislation generally should be understood as providing supplementary protection of groups, supplemental regulation of conduct that implicates no separation of powers concerns. Thus, while Congress unquestionably exercises substantive authority under Section 5, it enjoys no definitional authority over the Constitution's meaning. Section 5 enactments do raise federalism concerns, and the Supreme Court properly should inquire whether the ends of the legislation can be said plausibly to "enforce" the self-operative provisions of the Fourteenth Amendment. But enforcement authority is not limited to codifying, or providing additional sanctions for, conduct that courts on their own would find unconstitutional. Congress enjoys a remedial authority to act in a prophylactic fashion to prevent violations ever from occurring; to establish an environment conducive to the practical enjoyment of equal protection and due process. On the issue of permissible ends of Section 5 legislation, the question ordinarily should be whether the Court has acted in an area that the Court has identified as (or will agree is) one warranting heightened constitutional concern. Classifications the Court has subjected to intermediate or strict scrutiny are such areas, while classifications that are held to merit only rational basis scrutiny generally are not. However, classifications in the latter category may be proper subjects of Section 5 laws when they are found to implicate constitutional values (as recognized by the Court). The Court's "congruence and proportionality" test plays a useful role in cases, like Kimel v. Florida Bd. of Regents, 120 S.Ct. 631 (2000), where despite the invocation of Section 5, the absence of findings and the size of the gap between what the statute requires and what the Fourteenth Amendment requires of its own force raise the question whether Congress was, in fact, animated by Fourteenth Amendment concerns in passing the law. The test is unnecessary in cases like Boerne; it is inappropriate in cases like United States v. Morrison, 120 S.Ct. 1740 (2000), for it results in judicial scrutiny of the means Congress has chosen to advance an otherwise legitimate Section 5 objective. At one level, we should welcome the renewed attention to Congress's Section 5 authority, for an appropriate set of ground rules can serve both to quiet legitimate concerns that Congress impermissibly will overtake state functions and to initiate a new era of candor, encouraging Congress to legislate in the service of equality and due process norms under Section 5 rather than under the guise of regulation of commercial activity under the Commerce Clause. Morrison gives pause, however, and presents a threat to the capacity of the national legislature of address national problems through national solutions.

Amendments in the route to sentencing reform

The future of sentencing reform appears to rest for now in the hands of permanent sentencing commissions. These commissions have appeared during the last fifteen years, in a sizeable group of states enacting comprehensive changes to their sentencing laws. In virtually every case, the legislature has created a commission to direct future adjustments in sentencing laws.(2) The United States Sentencing Commission is the most visible of these administrative agencies. From the beginning, the advocates of these institutions have suggested that commissions have several advantages over legislatures. Commissioners, they have argued, will have more expertise and more time than legislators to devote to complex problems of sentencing. Their political insulation will allow them to resist short-sighted but popular views on punishment, and thus take full advantage of the expertise and time available to them.(3) Furthermore, the advantages of time and expertise for a commission should become more pronounced over time. After the commission puts into place an initial set of sentencing guidelines, it can continue to monitor the operation of the system and adjust the guidelines as the need arises.(4) This account of sentencing commissions places considerable weight on the power of the commission to amend guidelines. Without an amendment mechanism at its disposal, one might conclude that a commission could not orchestrate the sentencing changes necessary in a dynamic criminal justice system. If the commission does have the amendment power, its wise use over time could fulfill the promise of this sentencing institution. In this essay, I will describe the amendment mechanisms available to the most important sentencing commissions at work today in the United States. The survey leads me to a few related observations about the amendment power. First, the vast majority of sentencing commissions do not have fully independent power to change sentencing law or practice. Lawmakers have not often promised to limit their own future involvement in sentencing questions. Second, the independent power to amend sentencing guidelines is neither necessary nor sufficient to make a commission successful as it manages a changing system. The amendment power has indeed contributed to the quiet and steady achievements of some commissions. But other commissions without any amendment power have nevertheless managed changes in the law effectively. Conversely, some commissions with even the broadest amendment powers have not used them for effective change. Amendment power is one tool for a commission to use as it manages change in the sentencing system, but it is only one among several possible mechanisms. Third, the experience of sentencing commissions thus far has shown that the quality of the amendment process--whether independent or not--matters more than the existence or non-existence of an independent amendment power. A commission paying attention to lawyerly such as notice, participation, and accessibility will have more success, regardless of the institutional arrangements necessary to amend the law. The values of procedural regularity are far older and more widespread than the innovative sentencing commissions appearing on the scene over the last fifteen years. The commissions, if they are to mature as institutions to administer legal systems, must draw more on the experience of other administrators in American governments. They can no longer think of themselves as exceptional or temporary bodies operating in a crisis setting. The process ethic of the bureaucrat will determine the future of commissions in setting sentencing policy. I Degrees of Independent Amendment Power For those who are enthusiastic about the use of commissions to set sentencing policy, the agency's permanent presence is critical to its appeal. Once sentencing guidelines go into place, they could quickly fall out of step with their surroundings. …

The Executive Veto in Arizona: Its Use and Limitations

HE MOST WIDELY discussed weapon in the legislative arsenal of the governor is the executive veto. The veto is actually not a native American practice, but rather is one passed down through the centuries from various contributors in Western civilization. The veto accompanied the transplant of the royal governor to this country, and it became his most resented tool of authority. When the constitutions of the new states were drafted, only Massachusetts and South Carolina conferred the veto power upon the governor. States soon started changing their negative attitude toward their chief executives, however, and by 1815 over half the states had restored the veto power to their governors.' During the nineteenth century the balance of power, originally so weighted in favor of the legislature, began to shift. By the turn of the century virtually all state governors possessed the veto. Today North Carolina is the only state withholding this power from the governor. The executive veto was originally intended as a safeguard against legislative encroachment on the executive. The trend in the twentieth century has been to strengthen this tool and redesign it to achieve positive purposes. The states of Alabama, Massachusetts, New Jersey, and Virginia for example, allow the governor not only the veto, but also the power of amendment. These amendments are then resubmitted for legislative concurrence.2 One-quarter of the states provide the governor a pocket veto, whereby a bill fails to become law if the governor does not sign it before a specified time has elapsed after the adjournment of the legislature. The legislative vote necessary to override the governor's veto varies from state to state. Requirements range from a simple majority to a two-thirds vote of the entire membership of each house. Most states follow the national pattern, which calls for a two-thirds vote of the members present and voting in each house. By the time Arizona's constitution was written in 1911, it was taken for granted that the governor should possess the veto. The executive article was patterned after those found in the constitutions of California, Oregon, and Wisconsin, each of which included a veto provision. Also, Arizonans were accustomed to the veto, since the territorial governor had been allowed this power since 1863. Arizona has been classified as a state having a strong executive veto. This classification is based in part on the time-leniency granted the governor to consider