Constitutional Amendment Procedures Research Articles

Tracing Constitutional Changes in Slovakia Since 2008

The paper analyses constitutional revision process in Slovakia taking into account recent constitutional changes that occurred since financial crisis of 2008. In the first part author describes forms of constitutional amendment procedure in theory and in practice that evolved in Slovakia. Second part is devoted to substantive and detailed examination of direct amendments taking place from 2008 onwards equipped with political situation that influenced each revision. Interestingly, not a single amendment of the period was adopted as a response to the crises but on the other hand all revisions were connected to the political questions of a given moment. Amendments are completely in hands of politicians and have become a show-off tools with little attention on possible damage on constitutional system. Regime of constitutional change in Slovakia is an ample illustration of political constitutionalism in practice.

English

Constitutional amendments are changes or alterations made to a given constitution with a view to improving it. In order to be able to adjust to future needs and prepare for unforeseen circumstances, most written constitutions usually contain special procedures for their amendment. This paper examines the constitutional amendment procedure in Nigeria and the requirement of presidential assent.  Key words: Constitution, amendment, procedure and presidential assent.

The Bungling of Justice Nadon's Appointment to the Supreme Court of Canada

This is a story of constitutional imprudence caused by political short-termism that unfortunately resulted in predictable damages to the working of the Canadian Federation. It is the sad chronicle of a series of government decisions that do not reflect what is to be expected from true statesmanship. I will first address the formal process that lead to the nomination of Justice Nadon to the Supreme Court of Canada. I will then turn to the challenges to Justice Nadon’s appointment, Parliament's attempt at modifying the Supreme Court Act without following constitutional amendment procedures and the received warnings that it not only chose to ignore, but that it actively derided. I will then examine the Supreme Court’s reference invalidating that nomination and some of the foreseeable constitutional consequences of the majority’s opinion.

Constitutional Amendment Rules: A Comparative Perspective

Constitutional amendment rules are now a near universal feature of national constitutions, yet their function remains largely under-theorized. This chapter thus uses a comparative perspective to explore a number of different functions, as well as dangers, to formal procedures for constitutional amendment. It notes, for example, the historical role played by constitutional amendment procedures in Canada, India, South Africa and Australia in: (i) formalizing, or legalizing, major constitutional revisions or changes; (ii) allowing a polity to ‘update’ of various specific constitutional structures or procedure; and (iii) allowing legislatures to engage in more effective forms of ‘dialogue’ with courts, by both jump-starting new judicial interpretations of a constitution and trumping existing judicial interpretations. It also explores the dangers of overly flexible amendment, from the perspective of the role of constitutions in promoting valuable forms of political (pre-) commitment, settlement, and minority rights protection. In addition, the chapter concludes by providing a concise summary, and critique, of the existing empirical literature on the actual determinants of the difficulty of constitutional amendment, both cross-nationally as well as within the US.

Amending Constituting Identity

Constitutional amendment procedures can create constitutional change in two ways: by providing evidence of popular support for constitutional change, and by changing the textual basis for subsequent acts of constitutional interpretation. Both mechanisms have clearly also succeeded, in various countries, in creating changes in the domain of constitutional identity. The question the essay investigates is whether there is nonetheless something peculiar about this domain that makes it especially difficult to succeed in using both these amendment mechanisms, simultaneously, in the quest for constitutional change. To explore this question, the essay draws on two distinct attempts to “amend” constitutional identity in Australia and the US in the 1960’s and 70’s, involving the 1967 amendments to the Australian Constitution and proposed 1972 Equal Rights Amendment (ERA).

National Higher Courts and the Ratification of EU Treaties

Courts in a given institutional context are aware of the implementation costs of their decisions. Contrary to some interpretations of Higher Courts’ reasoning, these have decided, in most cases, that EU treaties are compatible with national constitutional law. In cases on the constitutionality of EU treaties, a negative decision on a given treaty offers only two possible implementation options: either the treaty is re-negotiated or the constitution is modified. The most rigid constitutional revision procedures involve citizens either by means of a referendum and/or an intervening election. Therefore, and despite a significant number of appeals, Higher Courts have not ruled that EU reform treaties require constitutional revision for their ratification when citizens intervene in constitutional amendment procedures

Some thoughts on Canada's identity

This text contains Professor Benoit Pelletier's speech presented as a plenary at the British Association for Canadian Studies 35th Annual Conference, Democracy as a Work in Progress: The Intellectual and Cultural Dynamics of the Canadian Idea, University of Cambridge, 6–8 April 2010. Further updating of the text occurred prior to going to print (December 2010). Benoit Pelletier reminds us that, since its creation in 1867, Canada has provided a part of the answer to one of the major challenges confronting us today, which is the challenge of managing interdependence and enhancing diversity. The author also examines some of the components of Canada's identity. Among these are federalism, constitutional monarchy, parliamentarianism, constitutionalism and the rule of law, the independence of the judiciary, the constitutional and quasi-constitutional protection of human rights and freedoms, a cumbersome constitutional amendment procedure and democracy.

Constitutional Amendment Procedures and the Informal Political Construction of Constitutions

Recent public law studies demonstrate that the informal political construction of constitutional meaning—particularly by executive and legislative officials—manifests as an essential feature of American constitutionalism. A leading explanation of the phenomenon depends on the effect of formal amendment procedures. Given the inevitability of constitutional change over time, difficult and burdensome amendment procedures seem to require that political actors resort to informal means to pursue change and enshrine new constitutional meaning. While this explanation has been central to a number of studies of the federal constitution, it has also led to the exclusion of state constitutional experiences from the study of this phenomenon. This is likely because state amendment procedures are notably less difficult and (apparently) do not require the resort to informal means of change. I present evidence that informal political construction does occur in the states; it is as important there as it is at the federal l...

“The Earth Belongs Always to the Living Generation”: The Development of State Constitutional Amendment and Revision Procedures

Although the relatively flexible state constitutional amendment and revision procedures are generally considered to be inferior to the corresponding procedures in the U.S. Constitution, there have been few efforts to explain why state constitution-makers adopted these procedures, and as a result we have not been in a position to assess adequately the merits of the state approach. This article undertakes to explain the development of state constitutional amendment and revision procedures by examining the state convention debates that have been conducted throughout American history. The adoption of these procedures can be attributed, in part, to a different theoretical understanding of constitutionalism than prevailed at the national level, and, in part, to a desire to overcome various problems of governance at the state level, including the need to overcome entrenched geographic interests in the nineteenth century, and the need to overcome powerful special interests, as well as intransigent judges, in the twentieth century.

Temporal Limits on the Legislative Mandate: Entrenchment and Retroactivity

According to the general wisdom, legislatures lack both the power to “entrench” their enactments against alteration by their successors and the power to “retroactively” undo the efforts of their predecessors. The author argues that, rather than being in conflict, these principles share a common theme. Legislatures operate as agents of the people under constitutionally defined mandates that are limited in time as well as scope. Actions that transcend—either forward or backward in time—the temporal delegation of authority conferred by periodic elections do not bind the electorate. In the first half of the article the author suggests that an understanding of the rationale behind the entrenchment prohibition can help shed light on a diverse group of issues including congressional power to prescribe internal rules of operation, constitutional amendment procedures, and legislative impairment of contracts. In the second half of the article the author takes issue with the traditional objection to retroactivity grounded on vested rights and unfulfilled expectations. In its place he proposes a theory of retroactivity embodied in republican principles concerning the temporal relationship between the people and their legislative agents.

Temporal Limits on the Legislative Mandate: Entrenchment and Retroactivity

According to the general wisdom, legislatures lack both the power to “entrench” their enactments against alteration by their successors and the power to “retroactively” undo the efforts of their predecessors. The author argues that, rather than being in conflict, these principles share a common theme. Legislatures operate as agents of the people under constitutionally defined mandates that are limited in time as well as scope. Actions that transcend—either forward or backward in time—the temporal delegation of authority conferred by periodic elections do not bind the electorate. In the first half of the article the author suggests that an understanding of the rationale behind the entrenchment prohibition can help shed light on a diverse group of issues including congressional power to prescribe internal rules of operation, constitutional amendment procedures, and legislative impairment of contracts. In the second half of the article the author takes issue with the traditional objection to retroactivity grounded on vested rights and unfulfilled expectations. In its place he proposes a theory of retroactivity embodied in republican principles concerning the temporal relationship between the people and their legislative agents.