Theory Of Constitutional Change Research Articles

An American Jurist in London: Bruce Ackerman’s Proposals for Constitutional Reform in the UK Versus Bruce Ackerman’s Constitutional Theory

The American constitutional theorist Bruce Ackerman has recently suggested that the UK Parliament should call a constitutional convention to draft a written constitution that can be put to voters in a national referendum after a two-year drafting period. In this article, I examine a number of points of disjoint between these proposals and Ackerman’s own, “dualist” theory of constitutional change, developed from an intriguingly novel reading of American constitutional history. While this theory advocates generation-spanning, multi-institutional processes of constitutional change, Ackerman’s UK proposals involve a more fleeting and nationalistic approach, with unitary majorities apparently reigning supreme. The question is: can this disjoint between Ackerman 1 and Ackerman 2 be justified as Ackerman’s attempt to work within the contours of the UK’s constitutional culture, traditionally conceived? Or might Ackerman’s unfiltered American theory have something important to offer a UK audience today, given the divisions that the Brexit process has revealed in British society between opposing, traditional and non-traditional understandings of British sovereignty and democracy?

Framing EU Constitutional Time: A Future-Oriented Theory of Constitutional Change for the EU

Framing EU Constitutional Time: A Future-Oriented Theory of Constitutional Change for the EU

SOCIAL MOVEMENT AND CONSTITUTIONAL CHANGE: THE CASE OF THE UNITED STATES

The major challenge that the theory of constitutional change in contemporary United States faced is social movement, and its core concern is to balance and maintain legal and political authorities of the Constitution through interpretation. At the descriptive level, the thoughts of liberal scholars of constitutional law who criticized the theory of originalism restored the true colors of social movement in acting on judicial interpretation of the Constitution in individual cases, thus summarized the rules of occurrence of such action, and put forward the theory of constitutional culture of the mechanism of action and that of the three-stages of action. At the prescriptive level, social movement is burdened with the “original sin” of political factions, and contrasted with the principle of republicanism in the constitutional era. During the Cold War period, pluralist theory linked social movement with the value of democracy, and began to accept its constitutional status. Moreover, given that the influence of social movement on judicial interpretation must be restricted in order to harmonize the conflict between political and legal authorities of the Constitution, both the pluralists and republicans put forward different schemes in response.

UNDERSTANDING INFORMAL CONSTITUTIONAL CHANGE

Amid much recent American work on the problem of informal constitutional change, this article stakes out a distinctive position. I argue that theories of constitutional change in the US must address the question of the relationship between the “small c” and “big C” Constitution and treat seriously the possibility of conflict between them. I stress the unavoidable role the text of the Constitution and structural doctrines of federalism and separation of powers play in this relationship and thus in constitutional change, both formal and informal. I therefore counsel against theories that rely solely on a practice-based approach or analogies between “small c” constitutional developments and British or Commonwealth traditions of the “unwritten” constitution and constitutional “conventions.” The alternative I advocate is to approach constitutional change from a historicist perspective that focuses attention on state building and the creation of new institutional capacities. This approach will allow us to make progress by highlighting that there can be multiple constitutional orders in a given historical era, thus accounting for the conflictual nature of contemporary constitutional development in the US.

Understanding Informal Constitutional Change

Amid much recent American work on the problem of informal constitutional change, this article stakes out a distinctive position. I argue that theories of constitutional change must address more directly the question of the relationship between the "small c" and "big C" Constitution and treat seriously the possibility of conflict between them. I stress the role the text of the Constitution and structural doctrines of federalism and separation of powers play in this relationship and thus in constitutional change, both formal and informal. I therefore counsel against theories that rely solely on a practice-based approach or analogies between "small c" constitutional developments and British or Commonwealth traditions of the "unwritten" constitution and constitutional "conventions". In particular, I critique theories developed by Karl Llewellyn, Ernest Young, Adrian Vermeule, and David Strauss. The alternative I advocate is to approach constitutional change from a historicist perspective that uses work from American political development scholarship to focus attention on how state building and the creation of new institutional capacities are linked to constitutional change. This approach will allow us to make progress by highlighting that there can be multiple constitutional orders in a given historical era, thus accounting for the conflictual nature of contemporary constitutional development.

Exploring the Function and Use of Requirements of Amendability in Global Constitutional Design

In the first part of the working paper I will put forward a theory of constitutional change that aims to illuminate what problem amendment requirements – procedural and substantive – exactly aim to solve. I will argue that, in constitutional democracies, the problem of constitutional change should be understood as a paradox: on one hand, written constitutions are intended to provide a stable framework for government; on the other hand, they need to have an adaptive capacity in order to be able to endure as circumstances and demands change. Including requirements of amendability can be seen as an attempt to solve this fundamental problem: it supposedly allows framers to carefully balance potentially conflicting demands of modern constitutionalism.Secondly, I will ask what kind of amendment requirements written constitutions around the world include in an attempt to fulfil their difficult task. This section takes a multidisciplinary approach and tries to make a systematic inventory of existing constitutional requirements of amendability – procedural and substantive -. It will also count how many times different requirements of amendability occur in written constitutions around the globe. The basis of this inventory is the Written Constitutions Database which we are currently creating in Leiden. The Leiden Written Constitutions Database records characteristics with regard to the constitutional tasks of the judiciary, fundamental rights protection, supremacy clauses and qualified requirements of amendability of all the world’s national constitutional documents currently in force. The attempt of this paper to give a systematic overview of requirements of amendability of written constitutions represents the first attempt to use (part of) the data.In conclusion, I will put forward an agenda for further research. I will argue that a global inventory may provide fresh inspiration for future constitutional framers. It may point to patterns with regard to which requirements of amendability are employed. Moreover, this first exploration may lay the groundwork for assessing the effectivity of different amendment requirements – and combinations of requirements - with regard to the task they were designed to perform.

John Rohr, the Administrative State, and the Study of Administrative Constitutionalism

John Rohr’s work made the Constitution central to American administration. He created a normative conception of administrative constitutionalism, and through textual interpretation he argued the framers’ ideas of administration are consistent with modern administration. I interrogate Rohr’s interpretations to argue that he overstated the compatibility of the framers’ vision and modern administration. Thus, I argue, to support Rohr’s normative program we must turn away from Rohr’s static Constitution and, instead, engage theories of constitutional change.

Comparing Constitutional Change in European Union Member States: In Search of a Theory

This article explores the under-researched issue of how constitutional change is brought about in modern democracies. Despite the fundamental importance of constitutions, we know surprisingly little about whether constitutional change is achieved by changing the explicit wording of the constitutional document, or by way of changing the meaning of the constitution while leaving the constitutional text unaltered. Which is the more common method and what variations in the use of these different methods are there in democratic political systems? This study systematically compares the use of explicit and implicit constitutional change in European Union (EU) Member States. The results show that implicit constitutional change is the more frequently used method, but also reveal substantial differences between EU countries. The article closes by discussing the road towards a theory of constitutional change. It does so by presenting five testable propositions that could lay the foundation for a theory of constitutional change.

The Polybian Moment: The Transformation of Republican Thought from Ptolemy of Lucca to Machiavelli

Recent research has emphasized the continuities in European republican political thought from the late Middle Ages until well into the Renaissance and even beyond. Two of the central figures in the story of the persistence of republicanism are Ptolemy of Lucca, who is commonly viewed as the quintessential late medieval republican, and Niccolò Machiavelli, whose work is generally regarded as the classic statement of early modern republicanism. We argue that these two remain conceptually at considerable remove from one another, a claim we illustrate by analyzing the impact of the reception, Latin translation and transmission of the Histories of Polybius, and especially the theory of constitutional change proposed in Book 6. The unavailability of the Histories to Ptolemy and its rather ample use by Machiavelli at the beginning of the Discourses signal an important divergence in the theoretical principles underlying the defense of republican institutions. In turn, this variation captures one facet of the distinct qualities of republican thought that separated the intellectual terrain of the early fourteenth century from that of the sixteenth century.

Constitutional Theory Transformed

I argue in this article that the recent interest in theories of constitutional change has the potential to transform American constitutional theory. Using constitutional change during the New Deal as my focus, I argue for a historicist approach to constitutional theory that is at odds with the interpretive approach favored by most scholars. I present a detailed argument as to why the New Deal was a constitutional revolution, summarize my own theory of constitutional change, and comment on Bruce Ackerman's similar theory. My theory is advanced within the framework provided by the methodology of historical institutionalism in political science. I then argue that the main theories of constitutional interpretation are not historicist theories, no matter what claims they make to historical backing. Constitutional theory should become by embracing a historicist perspective on the evolution of American constitutionalism. Such a perspective involves abandoning the narratives of continuity that characterize all major theories of interpretation. It means accepting that discontinuities such as the Civil War, Reconstruction, and the New Deal are part of the American constitutional story. I conclude with some comments on what a contextual constitutional theory would look like.

A THEORY OF CONSTITUTIONAL CHANGE

This article elaborates a theory of constitutional change. Our initial interest was to interpret 20 years of constitutional development in New Zealand. We quickly reached the limits of received constitutional theory. We then turned to extra-legal analytical techniques. Several North American writers have resorted to extra-legal sources in their quest to reconcile constitutional prescription and text.' The difficulties these writers have encountered might throw into question this genre of legal scholarship. Yet it is our thesis that a theory of constitutional change can draw upon extra-legal sources and yet possess methodological coherence. Our interpretation of constitutional change commences with some recent dicta of a senior New Zealand judge, Cooke J (now President of the New Zealand Court of Appeal). In five Court of Appeal decisions since 1979, Cooke J has questioned whether the New Zealand Parliament has authority to override common law rights deeply embedded in the legal system. His Honour instanced the subject's right of recourse to the courts for determination of his rights,2 the right of an office-holder to natural justice,3 the right to be free from, 'literal compulsion, by torture',4 the right to have Parliament and not the Executive under delegation