Formal Constitutional Change Research Articles

Disaggregating dismemberment: nullity, natality, and the hollowing of constitutional renewal in designed written constitutionalism

This paper aims to rethink the idea of constitutional renewal through a dissection of Richard Albert’s ground-breaking concept of constitutional dismemberment. It is contended that under the rubric of constitutional dismemberment are two exceptional constitutional phenomena: the ought-to-be declared nullity of unconstitutional constitutional amendments and the legal unity-defying, extraconstitutional expression of what Hannah Arendt called “natality” in political action. The thesis is that attempts to tame revolutionary constitutional alteration with designed rules as to formal constitutional change as Albert’s illustrates are missing the meaning of constitution-making for a natality-driven constitutional renewal characteristically defies designed constitutional form. The concept of constitutional dismemberment is first dissected in light of Arendt’s idea of natality. With constitutional dismemberment unpacked, it is further observed that the constitution-making transmutes into the formal pronouncement of a new codified constitution in Albert’s rigid tripartite classification of constitutional changes into amendment, dismemberment, and enactment. Albert therefore inadvertently reduces constitution-making to the formal enactment of a new codified constitution with constitutional natality dismembered and constitutional renewal hollowed out. It is concluded that Albert’s formalistic conceptual framework of constitutional change reflects the centrality of comparative written constitutions in the place of comparative constitutional phenomena in current comparative constitutional studies.

Disaggregating Dismemberment: Nullity, Natality, and the Hollowing of Constitutional Renewal in Designed Written Constitutionalism

This paper aims to rethink the idea of constitutional renewal through a dissection of Richard Albert’s ground-breaking concept of constitutional dismemberment. It is contended that under the rubric of constitutional dismemberment are two exceptional constitutional phenomena: the ought-to-be declared nullity of unconstitutional constitutional amendments and the legal unity-defying, extraconstitutional expression of what Hannah Arendt called “natality” in political action. The thesis is that attempts to tame revolutionary constitutional alteration with designed rules as to formal constitutional change as Albert’s illustrates are missing the meaning of constitution-making because a natality-driven constitutional renewal characteristically defies designed constitutional form. The concept of constitutional dismemberment is first dissected in light of Arendt’s idea of natality. With constitutional dismemberment unpacked, it is further observed that the constitution-making transmutes into the formal pronouncement of a new codified constitution in Albert’s rigid tripartite classification of constitutional changes into amendment, dismemberment, and enactment. Albert therefore inadvertently reduces constitution-making to the formal enactment of a new codified constitution, only with constitutional natality dismembered and constitutional renewal hollowed out. It is concluded that Albert’s formalistic conceptual framework of constitutional change reflects the centrality of comparative written constitutions in the place of comparative constitutional phenomena in current comparative constitutional studies.

Judicial Review of Constitutional Amendments: Taiwan

Scholars frequently distinguish between “hard” and “soft” forms of judicial review: “hard” review gives courts the final say on constitutional questions, whereas “soft” review attempts to strike a balance between judicial and legislative supremacy by giving the legislature the ability to override or set aside what the courts have done. However, the binary hard/soft distinction does not convey the full spectrum of possibilities between the extremes of legislative and judicial supremacy. On the one hand, so-called “hard” review can in practice operate like soft review because, even in systems of nominally hard review, the government usually retains the ability to effectively override the courts via constitutional amendment. On the other hand, courts have increasingly turned to options that are harder than “hard” review. A small but growing number of courts—the Taiwanese Constitutional Court among them—have claimed the power to invalidate constitutional amendments as unconstitutional. Yet even judicial review of constitutional amendments does not exhaust the options at their disposal. Analysis of Taiwan’s experience with judicial review over the last thirty years holds a number of lessons about judicial power and constitutional politics. First, “soft” review, “hard” review, and even review of constitutional amendments are merely intermediate points on a spectrum of judicial power that ranges from no judicial review to the judicial initiation of constitutional amendments. Moreover, the spectrum itself is dynamic and prone to expansion. In the face of new challenges, courts find new ways of asserting themselves, and in so doing, they continually remake the frontiers of judicial power. Second, there is no point on this spectrum where a court—or any other institution—is guaranteed the last word. Whenever courts assert themselves, other institutions have the ability to respond, and vice versa. Different responses are available at different points on the spectrum, but a response always exists. It is a defining characteristic of politics that, for every move, there exists a countermove. Finality is as elusive in constitutional politics as in any other form of politics. Third, the celebration of “dialogic” judicial review—in which constitutional questions are resolved via interaction between courts and legislatures rather than by judicial fiat—is problematic because, in some sense, all judicial review is “dialogic”. The fact that courts are never guaranteed the last word means that every plausible institutional configuration can be characterized as “dialogic” in the sense of allowing or inviting some degree of interaction, or “dialogue,” between the courts and the legislature. Finally, a court’s position on the spectrum of judicial power is not necessarily fixed by the constitution and can instead be highly fluid. As the recent history of the Taiwanese Constitutional Court demonstrates, it is possible for a court to traverse the entirety of the spectrum in a relatively short period of time without any corresponding change in the constitution itself. Major shifts in judicial power can occur without formal constitutional change because judicial power is at least as much a function of the political and institutional context as of the constitutional text.

Amendment and Revision in the Unmaking of Constitutions

The distinction between amendment and revision is foundational to our present understanding of formal constitutional change. Scholars have suggested how to differentiate amendment from revision, constitutional designers have entrenched distinct procedures for each, and judges have applied both of these concepts to actual cases and controversies. Yet even at its best the distinction is unclear and it raises more questions than it offers answers. My purpose in this invited contribution to the Edward Elgar Handbook on Comparative Constitution-Making is to clarify the distinction between amendment and revision from a perspective internal to the scholarship on constitutional change. I suggest with reference to jurisdictions as varied as Belize, Canada the Czech Republic and India that an amendment should be understood as an effort to continue the constitution-making project that began at the founding moment, while a revision should be understood as an effort to unmake the constitution by introducing an extraordinary change that is inconsistent with the fundamental presuppositions of the constitution. I conclude by suggesting that our reinterpretation of the distinction between amendment and revision nonetheless remains susceptible to exploitation.

Matter, politics and the sacred: insurgent ecologies of citizenship

In light of recent explorations into the interface between human agency and the agentic qualities of matter, the article revisits Michele Serres’ notion of a natural contract to explore the relationships between materiality, environmental politics and citizenship. In a break from conventional renderings of environmental citizenship, the article argues that nature enters into politics alongside human subjects, through insurgent socio-ecological assemblages. In a case study of the 2008 Ecuadorian constitution, with its organizing principle of buen vivir and provisions enshrining the rights of nature, the idea of a natural contract proves a useful heuristic device for probing the political intertwining of human and nonhuman. At the same time, it falls short in characterizing the dynamic socionatural insurgencies that transgress dominant orders and perform alternate modes of being, ultimately leading to such things as formal constitutional change. Moreover, the secular contractual language of the Ecuadorian constitution tends to efface the spiritual content of the indigenous cosmovisions that significantly inform its principles. In light of this, the second part of the analysis probes the way human actors attach meaning to their involvement in socionatural insurgence, with an emphasis on the sacred as an important and often overlooked dimension of political-ecological struggle. Taking the Latin American movement for water justice as its empirical referent, the article locates the spiritual dimension as a vital ontological and discursive bridge facilitating human actors’ embodied engagements with their ecological surroundings. In this way the sacred makes key contributions to assembling human and more-than-human elements within the insurgent ecologies of citizenship.

Justifications for Initiating a Constitutional Amendment to Establish an Australian Republic: An Empirical Study

Under section 128 of the Australian Constitution federal parliamentarians have the power to initiate constitutional amendments. This paper examines the justifications of politicians and public figures for proposing a referendum to introduce an Australian republic. From interviews conducted between 2008 and 2011, three important justifications for proposing change emerged: promoting a new national identity; success in passing a referendum and in re-election; and timeliness. An examination of these justifications raised additional questions, including: what reasons did politicians and public figures think were significant? How did their justifications form and develop? What were the reasons that inspired political action? The reasons for initiation of a referendum for a republic, and recognition of indigenous people in the Australian Constitution are also compared. The paper adds to the literature on formal constitutional change, and also offers a critique of the field.

Justifications for Initiating a Constitutional Amendment to Establish an Australian Republic: An Empirical Study

Under section 128 of the Australian Constitution federal parliamentarians have the power to initiate constitutional amendments. This paper examines the justifications of politicians and public figures for proposing a referendum to introduce an Australian republic. From interviews conducted between 2008 and 2011, three important justifications for proposing change emerged: promoting a new national identity; success in passing a referendum and in re-election; and timeliness. An examination of these justifications raised additional questions, including: what reasons did politicians and public figures think were significant? How did their justifications form and develop? What were the reasons that inspired political action? The reasons for initiation of a referendum for a republic, and recognition of indigenous people in the Australian Constitution are also compared. The paper adds to the literature on formal constitutional change, and also offers a critique of the field.

The man who never was? The Italian transition and 2008 election

The implications for the co-called Italian transition of the 2008 election initially seemed significant – but have since become increasingly uncertain as Berlusconi's conflict of interests has risen higher up the political agenda. This underscores the pertinence of asking about the sense in which the notion of ‘transition’ is actually applicable to the Italian case at all – bearing in mind that it describes a process now supposedly underway for some 17 years; and bearing in mind that its end point can seemingly not be identified (though by definition ‘transition’ implies movement between two points). Discovering if the term applies to the Italian case and if so whether 2008 has brought its conclusion nearer requires exploring if the political protagonists that have emerged from the election as the most significant players – the Popolo della Libertà and the Partito Democratico – have sufficient commonality of view, sufficient desire and sufficient power to complete a process of constitutional overhaul. The evidence suggests that while they have the view and the desire, there are significant limitations on their power. The election might potentially have been a watershed in the so-called Italian transition in the broader sense of system performance, aside from formal constitutional change. Here too, however, the evidence points away from the idea that 2008 represents a real sea change – though the chances seem good that it will come to be perceived as such.

Improving the Process of Constitutional Reform in Canada: Lessons from the Meech Lake and Charlottetown Constitutional Rounds

AbstractThis article explores ways of improving Canada's constitutional reform process by systematically comparing the strengths and weaknesses of the Meech Lake and Charlottetown constitutional rounds during three phases: agenda-setting, elite negotiation and ratification. The objective is to draw lessons from these experiences for future attempts to achieve formal constitutional change. The author argues that both the Meech Lake and Charlottetown processes were seriously flawed, but in rather contrasting ways. The Meech Lake process was too closed, narrowly representative and tightly controlled by government elites. The Charlottetown process was poorly managed. It lacked focus, economy and coherence in agenda-setting and selection of items for negotiation, and integration and unified leadership in its elite bargaining structures and processes. The consultative referendum used in the Charlottetown process operated successfully, but still needed organizational fine-tuning and more effective meshing with established ratification procedures. What is required is a more finely balanced and closely integrated “blended” process of parallel elite and citizen-based consultative and participatory structures operating in all phases of the constitutional process. Within this framework, the author offers a comprehensive list of proposals for addressing and overcoming the shortcomings of earlier constitutional reform efforts.

Repealing National Prohibition

In this new edition of the most comprehensive study of the political reaction against the Eighteenth Amendment, a response that led to its reversal fourteen years later by the Twenty-first Amendment, David E. Kyvig examines the operation of the national liquor ban, discusses central issues of U.S. constitutional development, and illuminates continuing public policy issues of alcohol and drug control. Employing previously unexamined archival evidence, Kyvig calls attention to a little-known but broad-based bipartisan movement led by the Associated Against the Prohibition Amendment and the Women's Organization for National Prohibition Reform. These organizations ad their allies amassed political power, particularly within the Democratic path. In the midst of the Great Depression they engineered a complicated, yet very democratic process of formal constitutional change, in the end achieving the only amendment reversal in U.S. constitutional history.