Formal Constitutional Amendment Research Articles

Federalism and the Notwithstanding Clause

This paper looks at possible responses to section 33 that could deeply affect the country’s underlying federal structure. It discusses three responses — disallowance, judicial review, and formal constitutional amendment — that have either arisen in public discourse or, I argue, warrant serious consideration. The ultimate goal of the paper is to offer a more complex way of thinking of about section 33 focusing on its relationship to Canadian federalism and, by implication, to the future course of the country’s democratic constitutionalism.

Assessing the Effects of Amendment Rules in Federal Systems: Australia and Switzerland Compared

Abstract The effects of formal constitutional amendment rules are still contested, yielding mixed and inconsistent findings. The key issue lies in overlooking the broader institutional context in which amending clauses are situated. This article presents a novel theoretical argument centered on the “institutional embeddedness.” Empirically, we leverage a unique, most different systems design that compares Australia and Switzerland to assess the direct and indirect effects of formal amendment clauses. Both federations implement an identical “direct-democratic model of constitutional change,” despite differences in size, the underlying societal structure, the federalism model, and form of democratic governance. Our empirical results reveal similar direct effects on minority protection, but differing indirect effects on federal dynamics differ significantly. The formal amendment rule sustains Switzerland’s decentralized federal order, while contributing to pronounced centralizing trends in Australian federalism. These findings have vital implications for constitutional design, highlighting that the specific institutional context is decisive, not just the formal amendment rule.

Japan's Pacificism as National Identity and a 'Normal' Security Option

Japan faces its most serious and complex defence environment since the end of World War II. The country holds two significant security concerns: first, and critically, China’s burgeoning military, increasingly aggressive diplomacy, and destabilising actions around the Senkaku Islands in the East China Sea; second, North Korea’s continued unpredictable rhetoric and actions in its nuclear arming program and ballistic missile testing. Japan’s 2022 National Security Strategy proposes two unprecedented policy ideas to counter these threats: first, to significantly increase Japan’s defence budget; second, to acquire counterstrike long-range missile capabilities in response to an attack. Nonetheless, despite these security issues and policy developments, this article argues that formal amendment of the peace clause in art 9 of the Japanese Constitution remains unlikely. To understand the improbability of constitutional amendment, this article first explores Japan’s constitutional pacifism under the post-World War II Yoshida Doctrine and the US–Japan cornerstone security alliance, as well as the context of North Korea’s nuclear and ballistic missile threat and the emotive issue of abductions of Japanese citizens. The article then turns to Japan’s historic imperial relationship with China as an avenue to understand contemporary relations, including the key issues of trade and its link to security, and the Senkaku Islands sovereignty dispute. It concludes that formal constitutional amendment of the peace clause remains unlikely in the short to medium term.

Fundamental Constitutional Changes Without Participation of the Constituent Power

Abstract The book review analyzes the work of two renowned scholars who have highlighted how fundamental constitutional amendments could take place through interpretation of statutes by the judicial arm of government or through legislation without invoking the formal constitutional amendment processes. Such constitutional changes are fundamental and therefore transform the polity of a society without involving the constituent power. It is crystal clear from the authors that constitutional revolution is not so much about the process of change but about the significance of the changes made.

Some Reflections on Constitutional Amendment Movement in the First Half of Moon Jae-In Government: With Special Reference to the Role of the Judicial Bodies

This article aims at looking into the historical, political, social, and institutional considerations that may have influenced the suspension of President Moon Jae-In s proposal for constitutional amendment in 2018. Although broad factors and dimensions can be called upon in this regard, as far as institutional considerations are concerned, a focus will be given to the role of the judicial bodies in constitutional change. Either any abrupt attribution of all the political, social, and economic problems which the Korean society faces to the constitutional system alone and its concomitant idealistic or fundamentalist, partisan and non-consensual drive for comprehensive constitutional amendment as a panacea for such pathologies are doomed to failure. Since any constitutional reform movement should be based upon deliberative consensus on the exact causes of constitutional problems and effective alternatives to the existing constitutional institutions and rules, not only constitutional amendment but also legislative reform and changes in political culture are required for the successful constitutional change. The Korean experience in the first half of Moon Jae-In Government shows that constitutional changes through either formal constitutional amendment or informal change through judicial interpretation of the constitution can be foreseeable

Transgressing the Division of Powers: The Case of the James Bay and Northern Quebec Agreement

AbstractIn 1975, the Bourassa government received legal advice that the James Bay Northern Quebec Agreement exceeded provincial jurisdiction. Legal counsel advised the constitutionality of the Agreement be secured through formal constitutional amendment. No such amendment was sought. Based on authorized access to Premier Bourassa’s archived dossier on the Agreement’s negotiation, this article sets out the following: 1) why the provincial government sought to encroach on federal jurisdiction; 2) the strategic means employed to insulate the Agreement from s. 91(24) litigation; and 3) provincial negotiators’ views on how judges would approach the Agreement going forward. This article confirms theoretical expectations about when governments might coordinate to transgress federalism’s division of powers: a high probability that courts would find a transgression occurred, and a high political cost should governments not coordinate on a transgression strategy.

The Practice of Informal Changes to the Ethiopian Constitution in the Course of Application

Given the generality of a constitution, it requires amendments in order to enable it to cope up with the socio-economic and political dynamics. As a result, formal constitutional amendment procedures have remained vital mechanisms in this regard. However, the rigidity of formal constitutional amendment procedures and/or the political context of a country have often kept constitutions static and frequently induce politicians to look for alternatives. Informal constitutional amendment mechanisms are thus designed in response to the difficulty of formally amending the constitution. In this sense, the role of non-constitutional mechanisms in the alteration of a constitution is essential. The FDRE Constitution encompasses a constitutional provision that spells out how the Constitution can be amended. However, there has not yet been a single formal constitutional amendment. This article examines instances of actual but unwritten constitutional changes in the course of application that have been occurring in Ethiopia for which formal constitutional amendment cannot account for. These include constitutional changes through constitutional interpretation, or by legislation. The article contends that there are time-honoured practices that regulate and continue to guide the course of the Ethiopian federal state in contradiction to the Constitution. Equally important, party structure also influences the federal distribution of power. Key terms FDRE Constitution, informal constitutional changes, constitutional amendment, constitutional interpretation, political custom, law enforcement, Ethiopia.

Amending constitutional amendment rules

No part of a constitution is more important than the rules that govern its amendment. Given the important functions served by formal constitutional amendment rules, we might expect constitutional designers to entrench them against ordinary amendment, for instance by requiring a higher-than-usual quantum of agreement for their amendment or by making them altogether unamendable. Yet relatively few constitutional democracies set a higher threshold for formally amending formal amendment rules. In this article, I demonstrate that existing written and unwritten limits to formally amending formal amendment rules are unsatisfactory, and I offer modest textual entrenchment strategies to insulate formal amendment rules against ordinary formal amendment in constitutional democracies where the constitutional text exerts an appreciable constraint on political actors. I draw from historical, theoretical and comparative perspectives to suggest that two principles—intertemporality and relativity—should guide constitutional designers in designing formal amendment rules in constitutional democracies.

Nudging Federalism towards Productive Experimentation

Formal constitutional amendment can be difficult to achieve and, without the confidence of experience, may introduce changes that too quickly and too rigidly alter the balance of authority between federal and state governments. Therefore, in federal systems it is preferable to experiment with alterations prior to formal adoption. In this article I address how federal systems encourage two types of policy experimentation that are either unlikely to be tried or unlikely to be accepted. To encourage costly state experimentation, the federal government can alter financial incentives, nudge states towards a new policy by shifting public attention, set a pre-emptive floor and offer party-based rewards. To smooth union acceptance of selfish experimentation, a set of safeguards encourages deliberation and experience with the policy that leads to public acceptance or rejection.

Entrenching ‘Cooperative Federalism’: Is It Time to Formalise Coag's Place in the Australian Federation?

The purpose of this article is to assess the desirability and feasibility of any point of convergence between Australia’s formal constitutional arrangements and COAG. Although several commentators have suggested that this must be the logical endpoint to the sub-constitutional reform which is currently in train, there is ambiguity about much of the detail of such an argument. We consider precisely how constitutional recognition of intergovernmental co-operation might look – whether it should be of COAG itself (and what difficulties this might introduce in turn) or whether an appropriately facilitative change can be cast in more generalist terms. Of either option it must be asked to what extent it would properly address the concerns that many have expressed about the place of COAG and IGAs in our political system. Given the obstacles to constitutional change, it must be seriously considered whether many of those concerns could be met through reform remaining at the sub-constitutional level. Additionally, an awareness of what might be risked through formal constitutional recognition of a body that certainly enjoys the benefits of adaptability should not be lost sight of. For the present, the sub-constitutional federal arrangements will undoubtedly continue to change rapidly as governments grapple with shared problems in key policy areas such as health, natural resources and education. Others have concluded that no factor has determined the contours of Australian federalism more than the need for pragmatic solutions to policy problems and that these, rather than any overarching constitutional theory of the federal state, continue to drive reform. Nevertheless, as under-theorized and as reactive as these developments are, they only increase the desirability of formal constitutional amendment which is reflective of the reality of Australian federalism today. This is not merely for show or neatness – but rather to recognize that government is found under the Constitution, not apart from or alongside it. The point at which convergence is to occur between the product of political reform on the one hand and constitutional law on the other is surely contestable. It may be some time off yet. But it continues to be foreshadowed and as the need for it is only likely to grow stronger, it is best to be prepared. This article is our contribution to that effort.

L'évolution des rapports entre le droit canadien et le droit international un demi-siècle après l'affaire des conventions internationales de travail

SummaryThis article reviews the suggestion implicit in two recent obiter dicta of the Supreme Court of Canada and the widely held view in English Canada that the Labour Conventions Reference was wrongly decided, and that parliament should have exclusive jurisdiction to implement any treaty. It is argued that reversal of this rule would constitute a fundamental change in the nature of the Canadian federal system; is not warranted by any functional argument and has never been requested by the principal interested party, namely the government of Canada. It is also argued that the only proper way to make such a change is by way of formal constitutional amendment. Given the existence of a host of treaties covering every imaginable field of human conduct, a blank cheque to parliament to implement any treaty would in effect constitute one of the most major changes of the Constitution in our hutory. Among the problems considered is that of the extreme fluidity of the concept of a treaty in international law. The author suggests that other avenues exist for the expansion of federal legislative jurisdiction to implement treaties in the field of international trade if this is necessary.