A couple of weeks ago, the Dutch government announced that it will soon submit two bills to amend the national constitution. The first proposal purports to introduce a ‘general provision’ declaring that the Netherlands is a constitutional democratic state that respects human rights. Proposal two seeks to add the right to a fair trial to the constitutional fundamental rights catalogue.
On the face of it, the proposed amendments are pretty important. They are, however, nothing more than what the late Princeton constitutionalist Walter F. Murphy called ‘housekeeping chores’: amendments to the constitutional text that take place many years after the actual constitutional transformation took place.
Think about it. The Netherlands has been a constitutional democracy for at least a century. The doctrine of the ‘democratische rechtsstaat’, as it is called in Dutch, is fairly well established. Human rights have been part of the constitutional canon for decades now. And, at least following the ratification of the European Convention on Human Rights in 1953, the right to a fair trial has become an integral part of Dutch constitutional jurisprudence.
My point: the proposed amendments, if adopted, will merely codify norms that have long since been part of our legal practice. As a consequence, their significance is expected to be quite limited.
Considered on its own, that is of course not necessarily a problem. However, it is striking that, for the past hundred years or so, virtually all Dutch constitutional amendments have actually been housekeeping chores. Substantive fundamental changes have largely been effected by alternative means, such as treaties, ordinary legislation, interpretation and practice. We seem to have lost our ability to follow the formal constitutional law-making track before fundamental developments take place.
And that’s a pity.
A constitutional amendment procedure is potentially a remarkable instrument. It is designed to connect the often clashing tenets of constitutionalism and democracy. On the one hand, the procedure’s stringent amendment requirements – in the Netherlands a simple majority, elections and subsequently a two-thirds majority in both houses of parliament – have the ability to prevent simple majorities from bringing about rash changes. On the other hand, it aims to provide a means to legitimately adapt the constitutional system to changing circumstances. If it is followed properly, the special procedure guarantees extensive political deliberation and extraordinary support for sweeping legal and societal innovations.
Indeed, the Venice Commission endorses members of the Council of Europe to actually use their national constitutional amendment procedure to engineer fundamental transformations. In a 2009 report the Commission notes that ‘properly conducted amendment procedures, allowing time for public and institutional debate, may contribute significantly to the legitimacy and sense of ownership of the constitution and to the development and consolidation of democratic constitutional traditions over time’.
But unfortunately our amendment procedure isn’t properly conducted. As a matter of fact, it is functionally impossible to amend the constitutional document with regard to anything truly important. The procedure is probably far too rigid, for one thing. And after a century of actual stagnation, the constitutional document has been driven into the periphery of Dutch political life. At the same time, alternative means of fundamental change have arguably not been able to fully substitute the formal higher law-making track. ‘Ordinary’ instruments may not be able to confer the amount of legitimacy fundamental transformations need.
It is therefore time to mobilize the constitutional legislator. This institution should first of all revise our outdated, far too rigid, amendment procedure. After that, we can try to breathe new life into the constitutional document and move it to the heart of the political arena were it once was. There is nothing wrong with doing constitutional housekeeping chores, but we also need a working possibility to do more tougher jobs. After all, every political institution needs to be able to adapt to changing circumstances in order to stay alive. A constitutional document too.