Constitutional Amendment Process Research Articles

True Federalism and Restructuring in Nigeria: Challenges and the Way Forward

The basic minimal structures required for a country to lay claims to the practice of federalism include a political system in which there is power sharing under a written constitution with a government consisting of at least two orders: a central or federal government and the governments of the constituent units. Each order of government receives an allocation of financial resources tailored to their specific requirements. Nigeria has been a federal state since 1954, yet even this basic requirement of federalism has not been attained in the Nigerian federalism especially in line with the postulations of Professor KC Wheare.. This paper discusses restructuring and Nigeria’s political development with emphasis on the need for a review of the present governance and political structure to allow for practice of true federalism as it were. The argument is that the long years of military rule virtually annihilated tenets of federalism as the state was administered as a unitary state in consonance with military centralized command and authority structure. In place of a system where federating units ought to independent and coordinate and the federating units contributing parts of their sovereignty to a central authority, we have is a scenario where the federating units are agents of the central government dependent on it for survival. The implication therefore is that instead of operating as co-equals, the federation is run as a unitary state against the tenets of federalism as put forward by Wheare (1964). This has led to series to political logjam, constitutional crises and litigations which has threatened the political and economic stability of the Nigerian state with the attendant effect of struggle among various ethnic groups for capture of the state power and control of resources. This has led to a deep sense of alienation and politics of ethnic identity. This paper recommends that there should be an overhaul of the political system through constitutional amendment process to expunge provisions that negate federalism and provide for implementation of true federalism. The paper also recommends that there is need to enthrone visionary and transformational leadership that will sincerely tackle and implement true federalism for the good of all.

Moves and Countermoves: Countermovement Diffusion of State Constitutional Amendments

Policy diffusion literature generally studies the adoption of similar policies across jurisdictions, but often overlooks how opposing policies or legal constraints may influence the enactment of rigid state constitutional amendments. The current study models the spread of state constitutional amendments designed to prevent future policy change. Using conditional event history analysis on all states from 1999 to 2011 the empirical models analyze the spread of same‐sex marriage prohibitive amendments across the United States. Findings suggest that the nearby adoption of opposing policies encourage state legislatures to introduce prohibitive amendments. The regional diffusion effect suggests that policymakers “protect” their jurisdiction from nearby diffusion forces or seek electoral gains by symbolic protection by committing an already existing policy into the rigid state constitutional framework. Regional policy diffusion may, therefore, be explained by a countermovement mechanism unique to the state constitutional amendment process. This protective strategy among state legislatures and citizens may explain why many policy areas are frequently codified in state constitutions.

Upper Houses and Constitutional Amendment Rules. In Search of (Supra)National Paradigm(s)

Notwithstanding recent interest in the study of constitutional amendment rules, there is very limited scholarship investigating the structure of formal amendment framework and little doctrinal debate on the role of upper houses, as sub-national units’ representatives, played in national amendment process and their capacity to strengthen the rigidity of constitutions. From an institutional framework perspective, this paper emphasizes the rules according to which the upper houses take part in constitutional revision processes, critically assessing the advantages and disadvantaged as well as the reasons of inclusion in these procedures. In this regard, firstly, it presents the theoretical rationales for their inclusion in the constitutional amendment process; secondly, it examines the amendment rules and identifies those mechanisms which gradually structure the constitutional rigidity. The analysis of amendment rules in different constitutions will allow for some remarks on the EU procedure of Treaty revision which encloses elements of rigidity. Although the EU is not a State and the Lisbon Treaty is not a Constitution, the comparison with the constitutional revision procedures of certain Member States, especially those with a decentralized structure, consents to analyze whether the mechanism of including national parliaments aggravates the Treaty amendment processes and to assess the impact on the quasi-constitutional configuration of the EU which deserves to be further developed in the perspective of the configuration of national legislatures as ‘territorial parliaments’ and their more incisive participation in the process of ‘formal European constitutional change’.

The Late Ottoman Ulema’s Constitutionalism

By examining laws and proposals related to constitutional amendments, the Mecelle, and sharī‘a courts in the 1908–1912 Ottoman parliament, I attempt to explain how ulema in parliament tried to implement their understandings of constitutionalism and legal reform within the legislative framework of the period as set against the framework of parliamentary politics. I focus on the upper-level ulema members of the Chamber of Deputies as they worked to implement their understandings of law and constitutionalism and followed a political strategy to achieve their goals. Based on my study of the draft constitution, official parliamentary publications, and the popular press, I identify the understandings of legal reform that underpinned their proposals and how they influenced the constitutional amendment process, by contrast to the failure of their efforts to expand the Mecelle and reform the sharī‘a courts.

The United States Constitution: one document, many choices

1. Institutional Choices and the Preamble: The Constitution is a Real-world Document, Not a Utopian Blueprint 2. The Legislative Branch: It's a Congress, Not a Parliament 3. The Executive Branch: It's Headed by an Accountable Elected Official, Not a King or a Dictator 4. The Judicial Branch: It's a Group of Lawyers, Not a Bevy of Platonic Guardians 5. The Nation and the States: The Government is Federal, Not Confederal or Unitary 6. The Constitutional Amending Process: It's Difficult Because It Is Designed to Preserve the Constitution as Fundamental Law 7. The Bill of Rights and Freedom of Belief and Expression: They Provide for Liberty, Not License 8. The Bill of Rights, the Right to Security, and the Rights of the Accused and the Convicted: They Preserve the Rights of the Guilty in Order to Protect the Innocent 9. Equality and the Thirteenth through Fifteenth Amendments: It's an Equality of Opportunity, Not a Guarantee of Equal Results 10. Postscript: A Time for Reflection 11. Glossary 12. The Constitution of the United States and Its Amendments

Constitutional Reforms of Citizen-Initiated Referendum

In the opinion of many Slovenian and Croatian scholars, the constitutional and legislative design of citizen-initiated referendums in their respective countries was in many ways flawed. Referendums initiated by citizens have caused, at least from the point of view of governments in these two countries, many unexpected constitutional, political and/or economic problems. Over the years, several unsuccessful constitutional reforms of the institute of referendum have been attempted both in Slovenia and Croatia. In 2013, Slovenia finally attained its ‘constitutional moment’ in which it was possible to reach an almost universal consensus in the National Assembly on constitutionally redesigning the legislative referendum. On the other hand, several attempts by the Croatian Parliament to amend the constitutional provision relating to citizens’ initiatives have come to nothing due to the interests of the major parties in the constitutional amendment process being different.

Constitutional Reforms of Citizen Initiated Referendum: Causes of Different Outcomes in Slovenia and Croatia

In the opinion of many Slovenian and Croatian scholars, the constitutional and legislative design of citizen-initiated referendums in their respective countries was in many ways flawed. Referendums initiated by citizens have caused, at least from the point of view of governments in these two countries,many unexpected constitutional, political and/or economic problems. Over the years, several unsuccessful constitutional reforms of the institute of referendum have been attempted both in Slovenia and Croatia. In 2013, Slovenia finally attained its ‘constitutional moment’ in which it was possible to reach an almost universal consensus in the National Assembly on constitutionally redesigning the legislative referendum. On the other hand, several attempts by the Croatian Parliament to amend the constitutional provision relating to citizens’ initiatives have come to nothing due to the interests of the major parties in the constitutional amendment process being different.

Renewal and Reform for a Post-Karzai Afghanistan: A Critical Appraisal of the 2004 Constitution

With elections being held in May 2014 for a new president and in 2015 for National Assembly representatives, the opportunity exists then for amending the 2004 Afghan Constitution. The necessity exists for amendment from different perspectives; firstly because the experience of implementation over the past 10 years has highlighted some weaknesses requiring rectification, and secondly, the Taliban, a key player in the Afghan polity, rejects it as not being sufficiently Islamic. This is partly a consequence of the occupiers imposing their will during its original crafting. The excessive powers wielded by Karzai in the executive arm and the need to provide more inclusive representation in governance of such a multi-ethnic country suggest a parliamentarian system would have merits over the current presidential system. Facility is needed to ensure that any person the Afghan Human Rights Commission justly determines has committed or ordered crimes against humanity should be barred from running for any political office. Proposed election reforms would ensure a truly Independent Elections Commission, as well as synchronising expensive national and provincial elections so as to reduce election costs and security issues. To resolve current jurisdictional issues of the Supreme Court and the Independent Commission for Supervision of the Implementation of the Constitution regarding resolving constitutional issues, it is proposed that the former is provided these interpretative powers while the latter becomes a research institute, especially to enhance the understanding of what is required for Afghanistan to become an “Islamic” Republic. Specific recommendations are provided herein on what principles and features should be included in the Afghan constitution to characterise and develop it as an Islamic republic. Proposals for strengthening the role of Islamic Shariah include firstly, clarifying the role of ‘ahkam’ in the repugnancy clauses, sourcing rulings from other than the Hanafi madhhab, and expanding the applicability of the Shariah outside the courts to which it is currently restricted by the Constitution. A policy recommendation is made for the holding of a Constitutional Loya Jirga to deliberate upon various amendment proposals and the adoption of new clauses as an exercise in peace-building and stabilisation, especially involving the Taliban who would need to be fairly represented, protected, and have their views heard and considered in the constitutional amendment process.

Renewal and Reform for a Post-Karzai Afghanistan : A Critical Appraisal of the 2004 Constitution

With elections being held in May 2014 for a new president and in 2015 for National Assembly representatives, the opportunity exists then for amending the 2004 Afghan Constitution. The necessity exists for amendment from different perspectives; firstly because the experience of implementation over the past 10 years has highlighted some weaknesses requiring rectification, and secondly, the Taliban, a key player in the Afghan polity, rejects it as not being sufficiently Islamic. This is partly a consequence of the occupiers imposing their will during its original crafting. The excessive powers wielded by Karzai in the executive arm and the need to provide more inclusive representation in governance of such a multi-ethnic country suggest a parliamentarian system would have merits over the current presidential system. Facility is needed to ensure that any person the Afghan Human Rights Commission justly determines has committed or ordered crimes against humanity should be barred from running for any political office. Proposed election reforms would ensure a truly Independent Elections Commission, as well as synchronising expensive national and provincial elections so as to reduce election costs and security issues. To resolve current jurisdictional issues of the Supreme Court and the Independent Commission for Supervision of the Implementation of the Constitution regarding resolving constitutional issues, it is proposed that the former is provided these interpretative powers while the latter becomes a research institute, especially to enhance the understanding of what is required for Afghanistan to become an “Islamic” Republic. Specific recommendations are provided herein on what principles and features should be included in the Afghan constitution to characterise and develop it as an Islamic republic. Proposals for strengthening the role of Islamic Shariah include firstly, clarifying the role of ‘ ahkam ’ in the repugnancy clauses, sourcing rulings from other than the Hanafi madhhab , and expanding the applicability of the Shariah outside the courts to which it is currently restricted by the Constitution. A policy recommendation is made for the holding of a Constitutional Loya Jirga to deliberate upon various amendment proposals and the adoption of new clauses as an exercise in peace-building and stabilisation, especially involving the Taliban who would need to be fairly represented, protected, and have their views heard and considered in the constitutional amendment process.

Constitutional Amendments and the Constitutional Common Law

Constitutions obsolesce rapidly, and must be updated over time to reflect changes in the polity's circumstances and citizens' values. What institution or process should be entrusted with the authority to do the updating? If periodic wholesale replacement of the constitution is infeasible, the plausible choices are the constitutional amendment process set out in Article V, flexible interpretation by judges under the banner of constitutional common law, or some mix of the two. Here I explore the question by comparing the relative merits of formal amendments and the constitutional common law as means of constitutional updating. I attempt to dispel some prominent arguments that unjustifiably privilege constitutional common law over the amendment process, and also attempt to sketch the empirical conditions under which either process proves superior to the other. My principal target is a standard academic view that I shall call "the generic case against constitutional amendment." On this view, there are good general reasons to reject, or to indulge a presumption against, any proposed amendment. Among these reasons are the following claims: it is bad to "tamper" with the Constitution; the Constitution should not be "cluttered up" with amendments that will "trivialize" its majesty; constitutional amendments are "divisive" or "polarizing"; constitutional amendments may have bad unanticipated consequences; and constitutional amendments diminish the coherence of the constitutional text or of judicially-developed constitutional doctrine. Something like this view has become the conventional wisdom in the legal academy, following explicit arguments by Kathleen Sullivan and others. I argue that the generic case against constitutional amendment fails. The generic case rests on a nirvana fallacy that implicitly contrasts a jaundiced view of the amendment process with a romanticized view of common law constitutionalism. The real alternative to constitutional amendment is flexible judicial interpretation that updates the Constitution over time - a practice that can also be seen as tampering with or trivializing the Constitution, that is at least as polarizing or divisive as constitutional amendment, that equally risks bad unintended consequences, and so on. Once we have dispelled the nirvana fallacy underlying the generic case against amendment, constitutional updating is seen to pose a comparative institutional question. Constitutional amendment, on the one hand, and constitutional common law, on the other, are alternative institutional processes for managing the inevitable updating of constitutional law over time. Under what circumstances might one process or the other prove superior? What institutional considerations, or variables, determine their relative performance? I consider the strengths and weaknesses of each process: relative to common-law constitutionalism, the amendment process is less focused on the facts of particular cases (both for good and ill); puts less weight on the views of past judges (both for good and ill); allows for the participation of decisionmakers from a broader range of professions and backgrounds (both for good and ill); produces more enduring constitutional settlements, albeit at higher initial cost; and trades the benefits of flexibility for the benefits of rigidity. Amendments show to best advantage, relative to common-law constitutionalism, where the constitutional changes in question involve large value choices as opposed to technical improvements in the law, where constitutional change must be systemic and simultaneous rather than piecemeal, and where irreversible change is more valuable than reversible change.

An Analysis of Policy-Based Congressional Responses to the U.S. Supreme Court's Constitutional Decisions

While Congress can attempt to overrule constitutional decisions of the Supreme Court by initiating the constitutional amendment process, an amendment is rarely a practicable option. Instead, Congress regularly tries to modify the impact of constitutional decisions with ordinary legislation. I analyze policy-based responses to the Supreme Court's constitutional decisions that were initiated in Congress between 1995 and 2010. For each responsive proposal, I consider the relationship between the proposed legislation and the Court's legal holding and the relationship between the proposal and the public policy associated with the Court's decision. I find that Congress enjoys considerable success in reversing the policy impacts of the Court's decisions but is limited in its ability to overcome the Court's legal rules.

Two Failed Attempts to Islamize the Indonesian Constitution

��� In 1945 Indonesian politicians endeavouring to create a constitution for their hoped-for Indonesian state engaged in heated debate about the place of Islam in that state. However, the compromise at which they arrived, the famous “seven words” of the Jakarta Charter, was abruptly erased on 18 August, the day after the independence proclamation, by the committee charged with finalizing and validating the Constitution. Subsequently, there have been two further formal efforts to Islamize the Indonesian Constitution, the first in the late 1950s in the Konstituante (Constituent Assembly) and the second during the constitutional amendment process at the turn of the twenty-first century. Both failed. A comparative analysis of these latter efforts — with a particular focus on the nature and changing content of Islamist thinking on the Constitution and its relation to Islam — and on the differing contexts on which the debates took place, informs explanation of the dismal failure of both.

“Resource Control In Nigeria: The Current Controversy”

The theme of resource control has become a very controversial one in the Nigerian politics as the battle over who gets what of the nation's wealth takes the centre stage. The states which constitute the federating units claim to own resources and to them it is logical that the control of the nation's resources be allowed to them. For now, the Federal Government of Nigeria is solely enjoying the monopoly of resource control. Resource control is a constitutional matter and the constitutional provision is that the mining of minerals including petroleum oil and gas is an exclusive Federal responsibility. If this provision has to be reversed in favour of the states, it has to go through a rigorous process of constitutional amendment. The focus of this article is to x-ray resource control in colonial and postcolonial era with a view to giving appropriate recommendations. Qualitative - historical approach was adopted as method of data collection and analysis.

The Enemy Within: Oil in the Niger Delta

The Enemy Within: Oil in the Niger Delta

The Australian Constitution and Expressive Reform

The Australian Constitution is relatively old and this has led to some tension between the values it expresses and contemporary values. The paper refers to some historic landmarks in the life of the Constitution and these form the basis for an exploration of the expressive quality of the Constitution, with particular attention given to expressive reform. This exploration draws more generally on political, legal, philosophical, and sociological literature. It sounds a note of caution in pursuing expressive constitutional reform. On the other hand, it concludes with discussion of how the symbolic charge of the Constitution could be increased. This would be achieved through reform of the constitutional amendment process aimed at furthering popular sovereignty.

Recognizing Quebec in the Constitution of Canada: Using the Bilateral Constitutional Amendment Process

While there are many facets to Canada's perennial constitutional crisis, one issue dominates the debate: the recognition of the specificity of Quebec. The problem has been tackled but not resolved during a series of constitutional negotiations over the last forty years. Few believe that a further round of general constitutional discussions would successfully address this issue. A little-known provision in the Constitution could be employed, however, to begin the process of dealing with the challenge. Pursuant to section 43 of the Constitution Act, 1982, the governments of Quebec and Canada could adopt a bilateral constitutional amendment recognizing and entrenching French as the predominant language of the province and, in the process, effectively recognizing the Québécois nation in the Constitution of Canada. Constitutionalizing this contemporary reality would not only enhance the linguistic and cultural security of Quebec's francophone population by formally acknowledging the central element of the province's distinctive character but also ensure that the courts interpret the Constitution in a manner that both considers the interests of the francophone community and balances them with individual rights and freedoms in Quebec.

The American state constitutional tradition

For too long, the American constitutional tradition has been defined solely by the U.S. Constitution drafted in 1787. Yet constitutional debates at the state level open a window on how Americans, in different places and at different times, have chosen to govern themselves. From New Hampshire in 1776 to Louisiana in 1992, state constitutional conventions have served not only as instruments of democracy but also as forums for revising federal principles and institutions. In American State Constitutional Tradition, John Dinan shows that state constitutions are much more than mere echoes of the federal document. The first comprehensive study of all 114 state constitutional conventions for which there are recorded debates, his book shows that state constitutional debates in many ways better reflect the accumulated wisdom of American constitution-makers than do the more traditional studies of the federal constitution. Wielding extraordinary command over a mass of historical detail, Dinan clarifies the alternatives considered by state constitution makers and the reasons for the adoption or rejection of various governing principles and institutions. Among other things, he shows that the states are nearly universal in their rejection of the rigid federal model of the constitutional amendment process, favoring more flexible procedures for constitutional change; they often grant citizens greater direct participation in law-making; they have debated and at times rejected the value of bicameralism; and they have altered the veto powers of both the executive and judicial branches. Dinan also shows that, while the Founders favored a minimalist design and focused exclusively on protecting individuals from government action, state constitution makers have often adopted more detailed constitutions, sometimes specifying positive rights that depend on government action for their enforcement. Moreover, unlike the federal constitution, state constitutions often contain provisions dedicated to the formation of citizen character, ranging from compulsory schooling to the regulation of gambling or liquor. By integrating state constitution making with the federal constitutional tradition, this path-breaking work widens and deepens our understanding of the principles by which we've chosen to govern ourselves.

Indiana Constitutional Developments

the Governor of Indiana; A.B. 1979, Princeton University; J.D., 1983, Harvard Law School. The opinions expressed in this Article are solely those of the author and do not represent official statements of the State of Indiana or Governor of Indiana. 1. Article III describes distribution of powers, and articles IV through VII describe the workings of the branches of government. Article VIII sets up Indiana’s educational system, and article IX provides for other types of state institutions. Articles X and XIII describe state and local finance; article XI establishes constitutional provisions to regulate corporations; article XII sets up the state militia; article XIV establishes state boundaries; and article XV contains miscellaneous provisions. 2. Article I is Indiana’s bill of rights. Article II establishes provisions for voting and elections. Article 16 describes the constitutional amendment process. 3. For example, article IV, section 19 contains a requirement that each bill passed by the legislature contain a single subject matter, a requirement absent from the federal constitution. 4. See, e.g., State v. Richardson, 717 N.E.2d 32 (Ind. 1999) (offering more expansive state interpretation of double jeopardy); Ind. High Sch. Athletic Ass’n v. Carlberg, 694 N.E.2d 222 (Ind. 1997) (“process due” is identical under state and federal constitutions). 5. Jon Laramore, Indiana Constitutional Developments: The Wind Shifts, 36 IND. L. REV. 961, 986-88 (2003). 6. See infra Parts I.A-C. 7. See infra Parts II.A.3-4, B-D, G. 8. See infra Part II.A. INDIANA CONSTITUTIONAL DEVELOPMENTS

For the People, of the People and by the Military: The Regime Structure of Modern Turkey

The arrival, and subsequent longevity, of the military in politics in much of the Middle East over the last 50 years or so has elicited considerable attention. This is, perhaps, particularly so in Turkey, where, since 1909, there has been only 10 years in which a fully civilian administration has governed. Recently, the collapse of the Kurdish Workers Party and the beginning of a process of constitutional amendment aimed at meeting EU accession criteria has sharpened the controversy over the role of the military in the Turkish polity. The aim of this paper is to contribute to this debate by analysing the methods through which military rule has been perpetuated since the Second World War. Using the work of the sociologists Eric Nordlinger and Michael Mann, I argue that two succinct regime strategies are discernible. The first – semi-authoritarian incorporation – was deployed throughout Turkey during the 1960s and 1970s. Following the 1980 coup, however, it existed alongside a second method – autocratic militarism – which emerged in south-east Anatolia. Thus, the primary purpose of this paper is to offer an explanation for the structure of these strategies.

Conflicts of Interest and the Constitution

Increasingly, society has recognized the concerns posed by conflicts of interest. Conflicts of interest may compromise audit reports by accounting firms, courtroom decisions by judges, and treatment decisions by physicians. In several areas of the law, rules have been adopted to contain the influence of conflicts of interest. Codes of professional responsibility limit the ability of lawyers to represent both sides of a dispute, principles of corporate law prevent company directors from trading on inside information, and rules of agency law prohibit trustees from mingling their own funds with those of the trust.Conflicts of interest also can play a critical role in shaping constitutional doctrine. However, that role is seriously underappreciated. Courts and scholars mention conflicts concerns on occasion, but there have been few analyses of the role of conflicts of interest in constitutional interpretation. Consequently, legal scholarship has not adequately considered how constitutional law does and should take account of such conflicts.In this article, I offer a fuller discussion of conflicts of interest and constitutional interpretation. In particular, I will show how consideration of conflicts can help us solve three leading puzzles in constitutional theory and doctrine?the lack of a strong theory for separation of powers cases, the tension between judicial supremacy and the political question doctrine, and the question whether the process of constitutional amendment is governed exclusively by Article V. Addressing conflicts of interest can supply the missing theoretical principle for each of these important constitutional problems.In short, from separation of powers concerns to the political question doctrine and the constitutional amendment process, we can bring more coherence to constitutional law if we judge constitutional questions according to the influence that conflicts of interest might have.