Week Four: Constitutional Change (Unconstitutional Constitutional…
Week Four: Constitutional Change
Unconstitutional Constitutional Amendment
where an argument is raised that the amendment failed to comply with an explicit or implied amendment process
note that in
Coleman v. Miller
, the USSC declined to express a view on the constitutionality of the Child Labor Amendment - suggests that some amendments may be nonjusticiable
rejected in the US in challenges to the 19th (women's suffrage) amendment
the idea that there are some amendments which are unconstitutional in substance
"a theory of constitutional amendment necessarily depends on a theory of constitutions"
: on this theory, the constitution is a particular set of commitments, justified by positive democratic consent or a more organic consensual process
: on this conception, they are about rule of law and rules of recognition
good or just principles
: "instruments of justice, a charter of basic principles to be judged according to their capacity to produce a just, moral or a good society"
review of cases
first to suggest that a constitutional provision whose substance was inconsistent with democracy would be treated as unconstitutional
"There are constitutional principles so
and to such an extent an expression of law that precedes even the constitution so that they also
bind the framer
here, there was clear provision for substantive review of drafted provisions because of the 34 principles agreement
several amendments have been struck down on the basis that they would interfere with the
of the constitution
e.g. ousting judicial review
although not technically about amendment, the court invoked similar doctrine
"unwritten" requirements of democracy, minority rights, federalism, and the ROL bound the government parties
Brazil conducts judicial review for eternity clause violations
- use of ordinary procedures to enact amendments that would essentially amount to a replacement of the 1991 constitution
this was the basis for denying President Uribe the chance of a third term in offce
are one way that the issue may arise - but sometimes it will be found even without a textual hook
constiutionality vs. justiciability
the concept of an unconstitutional amendment should be distinguished from whether the court has power to review and declare the unconstitutionality of the amendment
texts addressing amendability
constitutional texts that address amendability could in theory provide greater clarity to questions of unconstitutionality. In so doing, the texts offer a basis in democratic consent and rule of law for the court's finding.
texts addressing authorization of JR
some constitutions do this - Turkey, Chile and Romania all expressly allow for substantive judicial review of amendments
procedural vs. substantive review
two further sorts of procedural issues
issues raising a concrete and specific question that has a purely procedural answer of general applicability (e.g. "was this passed by 2/3rds"?
issues that have to do with the choice between alternative procedural methods (e.g. the California SC in dealing with the separate processes for "amendment" vs. "revision"; or the Austrian distinction between 'total" and "partial" review)
a CP-based theory
one way of understanding the issue is the difference between "original" and "derivative" CP
i.e., the amending power is not the same as the original
- the constitution can only be amended, but not replaced
Constitutional Regime Change
Discussion of Poland
Ackerman argues that Poland missed its "constitutional moment" to entrench liberal principles after the solidarity movement in 1989
but should note that seven drafts were submitted Parliament between 1989-1991
Osiastynski: progress was slow, but this was because of historical factors which led Poles to be skeptical of entrenched constitutions and rights
Instead, Poles were choosing between a constitution of principle, or a constitution of compromise
: one of commitment and moral self-limitation, which is more likely to result in periods of crisis and massive change
: once the "moment" of principle is over, the process turns to ordinary politics
Sunstein and Holmes
: transitional democracies should allow for
relatively easy amendment procedures
to encourage the development of
theory of amendment
amending formulae are a way for framers to share their authority with future generations
but this can give rise to an anomaly - what is the source of authority to remake the constitution, if the amending power is conceived of as wholly subordinate to the constitution itself?
can't seriously suggest that a restrictive amending formula is compatible with democracy
where it is easy to amend, the stakes in judicial review are lowered, and the court may be consequently emboldened
in transitional democracies, legislatures are often weak. therefore, their original constitutions are unlikely to be respected. Better to let them amend it easily, and thereby build up their capacity and ease everyone in to the process of deliberation
Poland and Hungary
parliaments can easily amend - only need a 2/3rds majority
allow for "important choices to be
tolerated more easily by losers
Bulgaria and Romania
difficult to amend - subject matter restrictions and referendum requirements
Hungary's new Constitution
Fidesz and Orban took power in 2010, with slightly more than half the popular vote - but this gave them a legislative majority of 2/3rds, enough to amend the const.
reinstated power of prosecutors to designate special courts; removed statutes of limitations; impeded independence and effectiveness of the judiciary by enforcing retirements and court-packing; curbing jurisdiction
part of a new trend of
countries have an incentive to "play by the rules", and so will often utilize constitutional amendment rather than naked authoritarianism
Fidesz enacted 10 amendments in 2010 alone
what is the purpose of eternity clauses?
reinforce some fundamental self-understandings (but what if these change? e.g. Turkey)
reflect that framers believed certain principles to be at particular risk
usefulness of CP
is it time-limited? does it have to be reconvened every time a statute is struck down as unconstitutional?
As far as Schmitt was concerned, there is CP if the public "acclaims" certain acts - the authority has no normative content, merely the procedural authority of public acclamation
how does one identify the limits of the CP? Consider the Indian basic structure doctrine. How to tell this isn't just dressing up other issues, such as protection of the judiciary's power?
one way to think about this is of UCAs as an
doctrine - protecting the constitution against amendments which violate international norms
a hard process to measure - how to tell whether there has been some decline, especially if it is piece-by-piece?
a lot of this is "I know it when I see it" - how do we know it's not just political disagreement?