Significant Constitutional Change Research Articles

The market access principles and the subordination of devolved competence

The United Kingdom (UK) Internal Market Act 2020’s ‘market access principles’ are capable of disapplying devolved legislation. Because that process qualifies the effectiveness but not the validity of that legislation, the UK Government contends that it leaves devolved competences intact and, therefore, respects the devolution settlement. However, this article argues that the use of disapplication to mechanise the market access principles has a deeper subordinating effect on devolved competence. This is because it suggests that devolved legislation is second-class, even within competence, and it implies that the settlement offers no protection for the effectiveness of devolved legislation, in stark contrast to the position accorded to Westminster. Further, disapplication also points to a less autonomous model of devolution, undermines legal certainty, and conceals significant constitutional changes from view. As such, far from neutralising the Act’s centralising tendencies, disapplication only exacerbates them.

The Impact of Legislative Reform on Baptisms, Marriages and Burials 1836–52, with particular reference to London

This article considers, with particular reference to London, the impact of legislation during the second quarter of the nineteenth century on the churches’ practice of rites of passage in relation to births, marriages and deaths. It investigates the religious, political and social reasons for legislation relating to these rites which many contemporaries and subsequent historians considered an attack on the Church of England and evidence of advancing secularization. It shows that despite significant constitutional, social and religious changes during these years, religiously motivated politicians, sympathetic to the established church, achieved legislation introducing general registration of births, marriages and deaths, and providing for more satisfactory burial of London's rapidly growing population in the context of a high death rate. While satisfying some grievances of religious Dissenters, this protected the established church's interests, and evidence suggests that a high proportion of London's population continued to access its rites of passage for baptism, marriage and burial.

The ALBA constitutional project and political representation

Abstract After the Cold War era, significant constitutional changes took place in Latin America. One distinct trend is the neo-Bolivarian constitutionalism, which has taken place in the ALBA countries, including the constitutional replacements of Venezuela (1999), Ecuador (2008), and Bolivia (2009). Many scholars have rightly criticized these constitutional experiments arguing that they have helped to deteriorate a liberal notion of democracy. This essay approaches a question that complements those criticisms from a different perspective: how the ALBA countries have resorted to varied notions of political representation. The authors use the classic work of Pitkin to identify the different sorts of political representation involved in the ALBA constitutional experiments, finding a combination of symbolic and descriptive representation. The former is linked to the figure of the president as a caudillo that centralizes political power, whereas the latter is fostered by both the president and the contents of the new constitutions related to the original peoples. As a result, the empowering purpose of constitutionalism has been preferred over its constraining purpose.

German Constitutional Law in the UK Supreme Court

The outgoing tide of EU law will be Britain’s most significant constitutional change in recent times. In an era of uncertainties, the UK Supreme Court proved to be a guardian of the constitutional role of Parliament. The case of Miller, decided in the UK Supreme Court in 2017, proved that point. The highest court in the UK has therefore gained an important place in the global community of Constitutional Courts. This global community finds its legitimacy in the recognition of common values as well as the recognition of national variations. This article analyses to which extent common values, and in particular those found in German law, have influenced decisions in the House of Lords and UK Supreme Court. To do so, the author analyses decisions by the House of Lords and the Supreme Court and extrajudicial speeches by the Justices of the Supreme Court for references to German constitutional law. It identifies and maps the themes that have attracted the attention of the justices of the Supreme Court. More recently, the UK Supreme Court has referred to judgments and extrajudicial writing by German Constitutional Court judges. This was in the context of constitutional questions relating to the tension between membership within the EU and national identity, a theme which has occupied German judges for some time. As well as that, the interpretation of the European Convention on Human Rights has sparked an interest in German jurisprudence, in particular in the principle of proportionality.

Formal and Informal Amendment of the United States Constitution

This is the United States report submitted for the session on Formal and Informal Constitutional Amendment at the Twentieth Congress of the International Academy of Comparative Law to be held in Fukuoka, Japan in July, 2018. The report reviews Article V of the United States Constitution setting out the rules for constitutional amendment and it provides a brief chronology of the twenty-eight amendments adopted to date. It notes a number of potential problems of interpretation associated with Article V. The report considers the widely held assumption that the United States Constitution is one of the hardest, if not the hardest. constitution in the world to change. It goes on to discuss possible limits on the substance of constitutional amendments. Some of these are set out in Article V but, as some other jurisdictions have recognized, there may be further, implicit restrictions based on the distinction between constitutional amendment and constitutional replacement. Many issues associated with constitutional amendment remain unresolved as a result of the Supreme Court’s reluctance to pronounce on the validity of amendments. Finally, the report compares the Article V process to the very significant constitutional change that has been accomplished through the constitutional interpretation of the United States Supreme Court. It concludes that jurisdictions like the United States where the constitution is treated with undisguised reverence, face a dilemma. Limiting constitutional revision to the formal process will eventually result in a constitution that is radically unsuitable for a modern society. But allowing irregular modification by judges sacrifices the key values of security, stability and predictability, the reasons we have a written constitution in the first place.

Devotion to Legalism: On the Brexit Case

This note examines the UK Supreme Court's judgment in the Brexit case, Miller v Secretary of State for Exiting the European Union. The case upheld the decision of the High Court, which rejected the claim that the foreign affairs prerogative provided a legal basis for giving notice to EU institutions of the UK's intention to withdraw from the EU. But the Supreme Court's preferred basis for dismissing that claim rested on the more general proposition that significant constitutional change can only be effected by statute. This position offers the germs of a jurisprudence of constitutional change and was substantiated by means of an analysis of Parliament's dual capacity as legislator and constituent agent. Miller also includes important and potentially innovative dicta on the relationship between international and domestic sources of law.

Language Politics and Language Rights on the Territory of Former Yugoslavia the Today’s Serbia/Vojvodina

Abstract In this paper, we will attempt to outline the process of how the nationality/minority rights, especially the minority language rights, were changed in the former Yugoslavia in the next period of times: … and how they have changed in Serbia since 1990, and in Vojvodina. We present the most significant constitutional and legal changes, their impact on the institutional and everyday life, and the language policy tendencies. Finally, we discuss how the formation of the Serbian National Councils have shaped the linguistic rights of minorities in Vojvodina, in particularly after 2009, through examining the work, experiences, and the strategy of the Hungarian National Council and the Hungarians living there.

Reclaiming Politics: Popular Democracy in Britain after the Scottish Referendum

AbstractReferendums are often criticised for being elite‐controlled and undeliberative. This article argues that the detailed, multiactor regulation of the Scottish referendum resulted in an elaborate legal regime which helped to overcome these potential pathologies, diluting executive control and facilitating an exercise in national public engagement. It addresses the troubled history of referendum use in the UK and contends that the Scottish process may well transform how referendums are now viewed. Indeed, one outcome of the Scottish process is likely to be a greater demand at UK level for the use of direct democracy in processes of significant constitutional change. It is by no means certain, however, that these demands for greater popular engagement in the process of constitutional change will be met, particularly when we consider the Smith Commission process, which marks a return to elite interparty bargaining.

The 2011 AV Referendum or the attempt to change the UK parliamentary voting system

As the Lords Constitution Committee pointed out in its fifteenth report devoted to "the process of constitutional change" (6th July 2011) "The Constitution is the foundation upon which law and government are built. Yet, the United Kingdom has no agreed process for constitutional change. We do not accept that the government should be able to pick and choose which processes to apply when proposing significant constitutional change". This statement came as a reaction to the way the coalition government rushed the Parliamentary Voting System and Constituencies Bill through Parliament that was to serve as the legislative framework for the referendum on the Alternative Vote, with no prior consultation or pre-legislative scrutiny. Members of the Constitution Committee did not so much challenge the government’s right to initiate constitutional change but emphasize the pressing need to hold it to account and especially to make sure that the whole process is democratic and transparent as well as respectful of parliamentary scrutiny. Although constitutional change did not rank high among the 31 points listed by the Coalition Programme for Government following the May 2010 general election, some were to be given priority such as an overhaul of the voting system from first-past-the-post to Alternative Vote, a reduction of the number of MPs in the House of Commons to 600, establishing fixed-term parliaments and, in the longer run, turning the House of Lords into a wholly, or mainly, elected second chamber based on some form of proportional representation. The wish of the Conservatives to set up new constituency boundaries, and the opposition of the Liberal Democrats to the first-past-the-post system gave the two parties that now form the coalition the basis for a deal agreed during the five days of coalition negotiations in May 2010 without which the coalition itself might not have come into being. Besides, there was no sustained public demand for such constitutional change. Indeed, British voters had not sought a coalition government nor did they particularly want electoral or parliamentary reform. So it seems that those constitutional change proposals were doomed to fail from the outset as there was an absence of consensus within the government as well as a lack of consultation and no consideration of the wider impact of those changes on constitutional arrangements.

Politicians, voters and democracy: The 2011 UK referendum on the Alternative Vote

At the 2010 UK election, Labour proposed a referendum on changing the House of Commons electoral system from single member plurality to the Alternative Vote. Subsequently, a coalition was formed between the Conservatives and the Liberal Democrats, yet it was Labour's policy on electoral reform that was implemented. The paper explains why this proved to be politically convenient for Labour's opponents. At the same time, however, holding the referendum reflected an emergent de facto convention that significant constitutional change should only be introduced after it has secured popular endorsement. The paper assesses whether the dynamics of public opinion during the AV referendum suggests that voters' eventual decisions about constitutional questions reflect their views about the merits of the relevant arguments.

Introduction: A Century of Change

With the United Kingdom lacking a codified constitution, there has been no extraordinary formal mechanism for amending the provisions of the constitution. Change has been achieved through parliament. The century since the passage of the Parliament Act 1911 has witnessed significant constitutional change. The measures enacted have affected basic relationships at the heart of the nation's constitutional arrangements: those between the two chambers of parliament, between parliament and the people, between the state and the individual, between the UK and the rest of the world, and between the centre and the rest of the UK. The measures enacted prior to 1997 were essentially individual statutes produced in response to particular challenges. The period since 1997 has seen proactive and extensive legislation, changing substantially the contours of the constitution. Despite the scale of the change, the measures have been disparate and discrete and not generated within a coherent philosophical framework. Although achieving their principal goals, not all have had the effects intended. This volume treats some of the key measures enacted in this period.

"Still Chastened": Assessing the Scope of Constitutional Change under an "Obama Court"

For the first time since 1968, the election of Barack Obama raises the possibility of a liberal majority on the Supreme Court. In this article, I assess whether such an “Obama Court” would lead to significant constitutional change. Drawing on research regarding both the internal dynamics of the Supreme Court and the effect of the Court’s external environmental, I develop four benchmarks that historically correlate with more rapid and significant constitutional change. Taking each benchmark in turn, I argue that an Obama Court would lack the vision, the desire, and the power to fundamentally reshape the constitutional status quo. Instead, an Obama Court would likely be a mirror image of the later Rehnquist years, drifting to the left on the resolution of some constitutional problems, but in essence remaining a “chastened” institution mainly limited to incremental doctrinal change.

Adjudication in the United Kingdom: Constitutional Implications

Good ideas are often overtaken by great events. That happened to adjudication. Originally envisaged as a single concept applying across the United Kingdom, it has been overtaken by more significant constitutional change. This paper takes a look at that process. Something of a parallel could perhaps be drawn with the individual states in the United States each introducing a similar form of legislation. The possibility exists, of course, of each area adopting a different approach but the indications are that certain communality is developing in adjudication and it is, perhaps, a measure of the success of the concept of adjudication that it is being voluntarily adopted in other dependency areas such as the Isle of Man.

Reform in haste and repent at leisure: lolanthe, the Lord High Executioner and Brave New World

‘Turning and turning in the widening gyreThe falcon cannot hear the falconer;Things fall apart; the centre cannot hold;More anarchy is loosed upon the world.’Labour came to power in 1997 with a commitment to constitutional reform and joined-up government. New Labour has indeed produced significant constitutional change: devolution to Scotland and Wales, the Human Rights Act 1998, partial reform of the House of Lords, elected Mayors, a Freedom of Information Act, an Electoral Commission and more. Joined up it was not. Nothing better illustrated this than the (arguably) botched Cabinet reshuffle on 12 June 2003. On that day, Downing Street announced the resignation (or sacking) of Lord Irvine, the Lord Chancellor since 1997, and the abolition of his post, and, in its place, the establishment of a Department of Constitutional Affairs, and, finally, the creation of a Supreme Court.

Ethos, culture and reform pattersn: some British‐Yugoslav comparison

This article analyses value preferences and basic cultural behavioural patterns in two fairly diverse countries/societies: Britain and Yugoslavia. It is, from the very outset, assumed that both countries are undergoing a period of significant social changes, both political and social. The UK is introducing the policy of devolution with significant constitutional changes pending, while the Yugoslav society is recovering from the conflict in the area, economic slowdowns and is searching for its new identity. Due to long‐standing British interests in the Balkans, the attractiveness of a virtually unpenetrated Yugoslav market and the vast opportunities for investment pending the solution of political crises in the Balkans, it is expected that British investors, companies and entrepreneurs will be interested in establishing business links in Yugoslavia, and therefore it is more than useful to analyse basic cultural patterns of both societies, expressed through public opinion polls and informal exchange of opinions (used only in anecdotal manner). It is concluded that although both societies are shaped in the dominant European manner, there are also many differences between them, but none of them so significant as to pose an obstacle to a successful business co‐operation.

Reflections on Constitutional and Other Issues Concerning our Electoral System: the Past and the Future

The author, who served as the Chair of the Royal Commission on the Electoral Systems and the President of the Electoral Commission, reflects on New Zealand's change in voting system from First-Past-the-Post to Mixed Member Proportional (MMP) while providing his personal opinions. The article covers the appointment of Commissioners for the Royal Commission and the process in which MMP was chosen by the Commission. The author then discusses the various topics of debate under the MMP system including whether the introduction of a significant constitutional change should require more than a simple majority, how businesses and politicians reacted to the MMP system, whether MMP would lead to a weaker and fragmented government structure, whether MMP would give minor parties too much power, New Zealand's list MP system, voters' worries over "party hopping" during a government term, the need to provide effective Māori representation, number of MPs, the five percent threshold to get into Parliament, Parliamentary terms, and political finance. The author expresses pleasure that MMP obtained a greater degree of support than anticipated, and provides a number of talking points for democracy going forward.

Communication and Democratization in Africa

The current democratization process in Africa has ushered in significant constitutional and legislative changes in the continent. This article critically analyzes these changes with a view to finding new constitutional and legislative provisions that facilitate the development of the media and freedom of expression. It also examines the prospects for freedom of expression as well as problems that persist, and therefore need to be addressed. The main conclusion is that while recent constitutional changes offer promises for mass growth and freedom of expression, there are persistent problems that need to be addressed as part of the overall democratization process. For example, there is need to abrogate anachronistic statutory provisions in many African countries, put an end to the use of extra-legal and coercive measures in the state's relations with the media, as well as a need for sharp delineation and separation of the branches of government. Judicial independence, equitable access to government media, tariffs on media equipment and journalistic morality and professionalism are other problems highlighted in the article.

The Politics of Imperfection: The Amendment of Constitutions

The essays in Responding to Imperfection (ed. Sanford Levinson) can be read narrowly, as explorations of a set of relatively technical issues in American constitutional law, or broadly, as investigations into the political theory of constitutionalism. The narrow focus is on article 5, which specifies the ways that the U.S. Constitution may be amended. Are the procedures of article 5 exclusive, or may the Constitution be amended in other, unspecified ways? Are there any limitations on which parts of the Constitution may be amended (whether by article 5 procedures or by others, if any), or are parts of the Constitution off limits to such procedures, and if so, what is the extent of this entrenchment? These questions of the nature and limits of the amending powers, endlessly fascinating to students of American law, are the subject of sharp and lively dispute in this volume, and the varied and thoughtful answers given themselves justify the purchase of the book. But editor Levinson has shaped this volume to address much broader questions. How can we understand constitutional change? Do formal amendments account for much or most constitutional change, or at least for the most politically significant ones? Or, as some authors argue, have most truly significant constitutional changes occurred either outside the document or as a direct effect of external political or social changes? Are there rules or conventions that limit or specify which kinds of constitutional

Democratic institutions in South America: Comparative and historical perspectives

condemned permanently to be viewed through expectations derived from outside the region. It is not only foreign observers who 'compare' South America in this way. Latin American intellectuals have, notoriously, been keen to import ideas and concepts from parts of the world which seemed (at the time) more advanced and progressive. In the 1820s, inappropriate US-style constitutions were imposed across Spanish South America. Today, through an opposite process of comparison, experts on the region's politics have concluded that South American democracy is 'low intensity and 'delegative' rather than authentic,2 that its political institutions are over-presidentialised and likely not to work well,3 and that its economic problems are unlikely to be soluble in the light of its political organisation.4 Furthermore, scholars who have examined the Asian success stories conclude that South American states on the whole lack the 'embedded autonomy'5 which enabled Asian countries to enjoy their economic miracles, and that South American institutions and organisations, and the way in which they interact, are not conducive to protected property rights or confident investors.6 One wonders whether the region might not be in need of psychotherapy. Yet when we look at the reality of contemporary South America, a far less pessimistic picture is warranted. The points made by the 'pessimistic' authors mentioned above, while by no means wholly false and misleading in themselves, do give an overall impression which is unbalanced. During the past decade the region has enjoyed significant (though not especially rapid) economic growth in a (mostly) democratic climate. There have been significant constitutional changes and developments (including the previously unheard-of impeachment of two different presidents for corruption). There has been considerable regional economic integration. While the distribution of income remains very unequal, there have at least been some significant policy innovations attempting to deal with this. Much of the pessimism in the literature results from the assumption that nothing has really changed in the region. This assumption seems quite unwarranted. The argument here, in contrast, is that there has been a major change in the whole character of South American politics since the early 1980s. South

Beyond the Crystal Ball: Modelling Predictions about Quebec and Canada

Within the field of Canadian politics, intense debate over the constitution is a central and abiding concern. Given the failure of the Meech Lake and Charlottetown Accords, it is suitable to reflect on Canada--and especially Quebec--as a political entity in the greater setting of North America. The passage of the North American Free Trade Agreement (NAFTA), which creates economic alternatives for Quebec, (1) makes this an especially appropriate time to examine the prospects for significant (or macro) constitutional change. (2) Neither executive federalism nor popular referenda have succeeded in producing lasting agreement on basic principles of government between Quebec and the Rest of Canada (ROC). After the intense conflict over the Charlottetown referendum, while much of Canada retreated into constitutional hibernation, Quebeckers, possibly buoyed by anticipated passage of the NAFTA, boldly elected fifty-four members of the independantiste Bloc Quebecois (BQ) in the federal election of 1993, and a separatist Parti Quebecois (PQ) government in the provincial election of the following year. Given the passage of the NAFTA and the political uncertainty that still exists in post-referendum Quebec and Canada, constitutional issues promise to attain even greater centrality. Thus, the time is right for appraisal of constitutional problems and prospects within a new theoretical frame of reference. After all, one of the few apparent points of agreement about previous rounds of bargaining is that time pressure and lack of foresight are enemies of constructive change. (3) This research note introduces to the study of Canadian politics a new technique for predicting the outcome of bargaining over key issues. Although the paper's aim is modest--to describe the technique--it also outlines a more substantial research project that is currently underway and should provide insights into the outcomes of two fundamental issues facing Quebec-Canada relations in the aftermath of the 1995 referendum on sovereignty in Quebec. More specifically, the project seeks to predict the outcome of Quebec-Canada constitutional bargaining and the outcome of bargaining over a sovereign Quebec's attempt to join the NAFTA. The investigation unfolds in three stages. The first presents the Decisions Insights expected utility forecasting model. The second describes the current political and economic setting of the ROC and Quebec, and offers some predictions based upon the model as a means of presenting the outlines of a promising research program. The third and final stage encourages extension of the research project on both intellectual and practical grounds. Toward an Expected Utility Model Constitutional bargaining and negotiations among governments and interest groups can be studied in any number of ways. Conventional approaches combine (in varying degrees) empirical theory from political science and historical analysis. The result is a set of informative case studies that collectively trace the evolution of bargaining over distribution of power between the federal and provincial governments, most notably Quebec. (4) Models based on rational choice, or the application of microeconomic theory to the study of politics, are well suited to the analysis of the kind of bargaining that can be expected between Quebec, the ROC, and a range of others. These models begin with the assumption of self-interest and focus directly on how and why policies are made. The specific characteristics that link economic thought to political processes may be summarized as follows: first, methodological individualism as a point of departure; second, the assumption that individuals strive after their own interests in a rational way and try to maximize utility--this assumption may be called the fundamental behavioral hypothesis; and, third, use of methods and techniques of economic analysis. Thus, rational choice is a theoretical perspective with well-developed methods that can be applied to the integration of horizontal and vertical elite bargaining. …