Almost every country in the world has a central legal document that codifies fundamental rules that establish and regulate the government. Such a ‘formal constitution’ typically provides a special amendment procedure which renders constitutional law harder to change than ordinary legislation. The purpose of this rigidity is to secure that the constitution is not lightly tampered with and that fundamental change does not take place without extraordinary support.
Formal amendment procedures, however, seem to provide only a relative guarantee. Quite often, substantive constitutional developments occur independent of the formal amendment procedure. I propose labelling such transformations ‘extra-constitutional change’.
Extra-constitutional change probably takes place in every liberal democracy. The Venice Commission of the Council of Europe recently indicated that, in European countries, formal amendment is not the only form of constitutional change, and in some systems not even the most important. Also in India, Japan and the United States significant constitutional developments take place outside of the formal amendment procedures. In particular in the US, this phenomenon is discussed extensively. For instance Bruce Ackerman shows that important fundamental changes that are associated with the Reconstruction, the New Deal and the Civil Rights Revolution cannot be traced back to the 1789 ‘Constitution of the United States’. These transformations have to a large extent occurred without using the formal amendment procedure provided by Article V.
Another fascinating example is the development of the American Presidency. The formal constitutional document provides that ‘the executive power shall be vested in a President of the United States of America’. It furthermore prescribes that he (or perhaps in the future she) is commander in chief of the armed forces. Some framers of the formal US Constitution intended to establish a ‘mere’ executive. Others were in favour of a more powerful head of state. But the modern President is far more powerful than any of the framers could possibly have imagined. Since the Second World War, for instance, US presidents have had the most advanced standing army in the world at their disposal. A modern national security machine provides for the possibility of intelligence gathering and covert operations at the President’s order. The contemporary President is furthermore head of a vast federal bureaucracy which provides him with the possibility of encroaching deeply in social and economic affairs. In the past 225 years, significant substantive transformations to the Presidency have occurred, but largely independent from the formal constitutional law-making track.
During the coming two months, I will be visiting the University of Texas at Austin to further explore these issues and ask how extra-constitutional transformations should be evaluated. I will meet eminent scholars such as Gary Jacobsohn, Zachary Elkins and Sanford Levinson to discuss this phenomenon with them. What brings about extra-constitutional change? Is it perhaps too difficult to change the formal constitutional document? Or are there other circumstances that trigger fundamental change without formal amendment? Perhaps a national emergency or an economic crisis? And what are the effects of extra-constitutional transformations? Do these developments undermine the value of a formal constitution? Or was Walter Lippmann right when he found that ‘only by violating the very spirit of the constitution have we been able to preserve the letter of it’? All highly important questions at a time when the constitution of the European Union is also transforming rapidly without (foregoing) Treaty amendment. I will keep you posted.