The Foundations and Traditions of Constitutional Amendment by Albert, Richard -- Read -- Imperial Library of Trantor

Index

Cover Title Page Acknowledgements Contents Notes on Contributors Introduction: The State of the Art in Constitutional Amendment

I. Defining the Field II. The Architecture of Constitutional Amendment Rules

A. Unamendability B. The Operation of Constitutional Amendment C. Three Challenges in the Study of Constitutional Change

III. Amendment as Constitution

A. Perspectives on Constitutional Amendment B. The Future of Constitutional Amendment

Part I: The Foundations of Constitutional Amendment

1. Amendment Power, Constituent Power, and Popular Sovereignty: Linking Unamendability and Amendment Procedures

I. Introduction II. Unamendability and Constituent Power

A. A Three-Track Democracy in a Nutshell B. Primary Constituent Power and Popular Sovereignty

III. The Constitutionalisation of Primary Constituent Power

A. The Fallacy of Prescribed Constitution-Making Procedures B. We The ‘Limited’ People?

IV. The Spectrum of Constitutional Amendment Powers

A. Demanding and Facile Amendment Powers B. Linking Amendment Procedure and Unamendability C. The Spectrum of Amendment Powers and Judicial Review of Amendments

V. Conclusion

2. Constitutional Theory and Cognitive Estrangement: Beyond Revolutions, Amendments and Constitutional Moments

I. Introduction: The Person of ‘The People’ and A Three-Fold Cognitive Estrangement II. Beyond ‘The People’: New Tropes, Old Anxieties III. Three Forms of Estrangement-prevention: Holmes, Pettit, Dworkin IV. Tertium Datur: Mapping Constitutional Change Between the Revolution and the Amendment V. Towards a Different Familiarity: ‘The People’, The Paradox and The Sacrifice

3. Constraints on Constitutional Amendment Powers

I. Introduction II. A Doctrine of Unconstitutional Constitutional Amendments

A. Unconstitutional Amendments: Positive, Moral and Conceptual Claims B. Morally Unconstitutional Constitutional Amendments C. Conceptually Unconstitutional Constitutional Amendments D. A Problematic Rubric

III. Constraint and Powers of Constitutional Change IV. The Types of Constraint on Constitutional Amendment Powers

A. Process or Content B. Rule or Standard C. Legislator or Court D. Values Served by Constraint: Foundational, Majoritarian, or Counter-Majoritarian

V. Distribution of Power and the Justification of Constraint VI. Justification of Constraints on Constitutional Amendment Powers

A. Parameters of Justification B. Illustrative Schema of Constraints C. Contextual Factors D. Majoritarian Constraints E. Foundational Constraints F. Counter-Majoritarian Constraints

VII. Conclusion

4. Comment on Doyle’s Constraints on Constitutional Amendment Powers 5. Constituting the Amendment Power: A Framework for Comparative Amendment Law

I. Introduction

A. Sieyès’ Two Different Problems

i. Constituting the Constituent Power ii. Limiting the Constituent Power iii. Lessons from Failure and Success

B. Constituting the Amendment Power

i. People Who? ii. People When?

a. ‘The People’ has Left the House b. ‘We’ are Always Open c. Follow the Yellow Brick Road

II. Conclusion

6. Sieyès: The Spirit of Constitutional Democracy?

I. Introduction II. Towards a Representative Democracy

A. From the Tiers État to the National Constituent Assembly B. From Citizenship to Constituent Power: The Foundation of Political Representation

III. Towards a Constitutional Democracy

A. The Sovereign People B. The Sovereign Constitution

IV. Conclusion

7. Revolutionary Reform in Venezuela: Electoral Rules and Historical Narratives in the Creation of the 1999 Constitution

I. Introduction II. Carl Schmitt’s Unfortunate Victory over Hannah Arendt in the Analysis of Popular Constitution-Making III. Hannah Arendt’s Revolutionary Reform

A. The Dangerous Freedom of the People B. Renewal and Revolutionary Reform C. Extrapolating from Arendt: Unconventional Adaptation

IV. Hugo Chávez’s Radical and Original Constituent Power V. The Turning Point: The Electoral Rules for the Constituent Assembly

A. The Difficulty of Fighting Against the Referendum B. Ex-Ante Control of the Constituent Assembly through Electoral Rules

VI. Radical Breaks and Exclusionary Mandates

A. Liberal Democracy’s Potential for Revolutionary Reform B. First Past the Post: The Revolutionary Mandate to Destroy the Past C. Proportional Representation: Inclusion and the Pluralised People

VII. Conclusion

8. ‘Revolutionary Reform’ and the Seduction of Constitutionalism

I. A Revolution in Crisis: Braver’s Narrative of the Creation of the 1999 Constitution in Venezuela II. The Dilemma of the Sovereignty of the People III. The Seduction of Constitutionalism: When Constitutionalism Faces the Contingencies of Social Life IV. Conclusion

Part II: The Traditions of Constitutional Amendment

9. Constitutional Sunrise

I. Introduction II. Sunrise Clauses

A. Automatic and Contingent Sunrise Clauses

i. Automatic Sunrise Clauses ii. Contingent Sunrise Clauses

B. Sunrise Clauses and the Use of Conditions C. Sunrise Clauses and By-Laws

III. Contingent Constitutional Change Between Retrospective and Foresight

A. Sunset Clauses B. Sunrise Clauses and Aspirational Constitutionalism

IV. The Constitutionality of Sunrise Clauses

A. Riordan v An Taoiseach B. Sunrise Clauses and the Constituent Power

V. Conclusion

10. Constitutional Change and Interest Group Politics: Ireland’s Children’s Rights Referendum

I. Introduction II. Referendums and Constitutional Change III. Political Cleavages and Narratives for Change IV. Children’s Rights: From Lawyers to Interest Groups and Back Again V. The Referendum Campaign VI. Conclusion

11. Amendment-Metrics: The Good, the Bad and the Frequently Amended Constitution

I. Introduction: Does the Frequency of Amendment Relate to Constitutional Quality? II. Constitutional Length and the Economy: An Unexpected Relationship

A. Using Metrics to Evaluate the Quality of Constitutions B. Persuasion through Numbers: Dubious Explanations

III. Poor Countries, Lengthy Constitutions and High Amendment Rates: In Search of an Explicable Correlation

A. Correlating History and Political Culture to Constitutional Length B. When do Constitutions Change? C. The Greek Example: Testing the Neutrality Amendment Proposals for a Shorter Constitution

IV. Is There Such Thing as the ‘Ideal Constitution’? V. Conclusion

12. Comment on Amendment-Metrics: The Good, the Bad and the Frequently Amended Constitution

I. Introduction: Does the Frequency of Amendment Relate to Constitutional Quality? II. The Notion of a Bad Constitution III. Criteria for a Good Constitution IV. The Purposes of Amendment V. The Fallacy of Confusing Correlation with Causation VI. Conclusion

13. Constituting ‘the People’: The Paradoxical Place of the Formal Amendment Procedure in Australian Constitutionalism

I. Introduction

A. Australia’s Amendment Procedure in Context B. The Place of the Formal Amendment Procedure in Australian Constitutionalism

i. Section 128 as the locus of Australian Popular Sovereignty ii. Section 128 as the Site of Ordinary Politics

II. Evaluation and Conclusion

14. Hard Amendment Cases in Canada

I. Part V and Hard Amendment Cases

A. The Logic of Part V B. Hard Amendment Cases

II. Principles of Application

A. Supporting Characteristics and Qualitative Assessments

i. The Principle ii. The Principle in Action iii. The Case of Supreme Court Reform

B. Enhancements and Alterations of Architectural Interests

i. The Principle ii. The Principle in Action

III. The Case of Mandatory Bilingualism at the Court IV. Conclusion

15. Formal Amendment Rules and Constitutional Endurance: The Strange Case of the Commonwealth Caribbean

I. Introduction II. The Rationale for the Inclusion of Formal Amendment Rules in Commonwealth Caribbean Constitutions

A. Special Legislative Majorities B. Referendum Requirements C. Constitution-Making in the Eastern Caribbean

III. Post-Independence Constitutional Reform and Amendment Culture

A. Special Legislative Majorities B. Referendums

i. Guyana ii. Nevis iii. The Bahamas iv. St Vincent and the Grenadines

C. Amendment Culture

IV. Conclusion

16. The French People’s Role in Amending the Constitution: A French Constitutional Analysis from a Pure Legal Perspective

I. The Position of the People: Fundamental and Absolute, in Appearance

A. The People’s Fundamental Desire for the Present Constitution B. The People’s Central Role in the Constitution’s Amendment Procedure C. The People’s Absolute will Reflected in the Constitution

II. The Position of the People: Limited and Relative, in Law

A. Social People and Legal People B. The 1962 Legal Revolution C. The Amending Procedure of Article 11 Questioned

17. The Implication of Conflation of Normal and ‘Constitutional Politics’ on Constitutional Change in Africa

I. Introduction II. Decision Making in a Polity III. Expression of Normal Politics in Constitutional Politics IV. Revisiting Effectiveness and Stability V. Constitutional Irrelevance VI. Conclusion

18. Direct Democracy and Constitutional Change in the US: Institutional Learning from State Laboratories

I. Introduction II. Article V of the US Constitution

A. The Four Classic Paths to Amendment B. Exclusive Reading of Article V C. Non-Exclusive Reading of Article V

III. State Laboratories

A. Amendment by Proposal of the State Legislature

i. One or Two Legislative Sessions—Supermajority vs Simple Majority Vote ii. Special vs General Election iii. Size of Popular Vote

B. Amendment by Popular Initiative C. Constitutional Convention D. Constitutional Commission

IV. Alterations to the Federal Amendment Procedure

A. Initiative Petitioning B. Constitutional Referenda C. Simple Majority for Popular Votes

V. Conclusion VI. Attachment: Methods for Constitutional Amendment Provided by the State Constitutions

Conclusion: The Emergence of Comparative Constitutional Amendment as a New Discipline: Towards a Paradigm Shift

I. A Paradigm Shift in Comparative Constitutional Change II. The Amendability Factor: Understanding Constitutions through their Change III. New Taxonomies of Constitutional Change IV. Symbolism and Functionality of Formal Amendment Rules V. Conscious Constitutional Design: Drafting Amendment Rules VI. Legitimacy and Constitutional Change VII. Conclusion: Toward a Holistic Conceptualisation of Comparative Constitutional Amendment

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