Requirements of Amendability in Global Constitutional Design
Requirements of constitutional amendability are often seen as very important, if not essential, instruments of modern constitutional design. Yet the topic of constitutional amendment is remarkably under-theorised and under-explored.
Today, virtually every constitutional state in the world has included qualified procedural and, in some cases, substantive requirements of amendability into its constitutional document. Such requirements are often seen as very important, if not essential, instruments of modern constitutional design. The American constitutionalist Amar, for example, asserts that amendment requirements are of ‘unsurpassed importance, for these rules define the conditions under which all other constitutional norms may be legally displaced’. And also the Venice Commission of the Council of Europe considers constitutional amendment rules to be of great significance. ‘The amending power is not a legal technicality’, it asserts, ‘but a norm-set the details of which may heavily influence or determine fundamental political processes’.
Yet, the topic of constitutional amendment is remarkably under-theorised and under-explored. Textbook theories regard qualified requirements of amendability a fundamental feature of written constitutions, but they often do not explain why a constitutional law-making track should be available at all. Moreover, many comparative accounts focus on constitutions of countries like the United States, Germany and France: the ‘usual suspects’. Meanwhile, the availability of all written constitutions of the world currently in force in the English language has made it possible to conduct much wider studies that may shed new light on classic issues of constitutional change.
In a paper I am currently writing - and that I will present at a conference in Austin, Texas next week - I will address this gap.
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.