Amazingly, the Constitution of the Kingdom of the Netherlands has endured for more than 200 years now. That makes it the oldest written constitution of Europe that is still in force and, after the Constitution of the United States of 1787, the second oldest written constitution of the world. The Constitution of the Netherlands has well exceeded the average life expectancy of a modern constitutional charter, which is about nineteen years. And, more importantly, it has provided the foundation for one of the most stable constitutional democracies in the world.
The Dutch experience has been the main inspiration for International IDEA, the Ministry of Foreign Affairs of the Netherlands and Leiden University Law School to organise a conference on ‘The Constitution of the Netherlands at 200 – lessons learned for constitutional transitions today’ which will be held on June 3, 2015. We have invited scholars and people involved in the practice of constitution-making from all over the world to discuss what countries undergoing constitutional transition in the 21st century can learn from the remarkable case of the Netherlands.
I was asked to cover the issue of constitutional change at this conference. Surely a constitution cannot endure for two centuries if it would not have included sufficient means of reform. How has the Constitution of the Netherlands been adapted as circumstances and demands changed? And what lessons might be relevant for countries facing similar challenges and undergoing constitutional transition in contemporary times? These questions are extremely relevant since, besides drafting a constitution, constitutional change is one of the most difficult challenges facing a constitutional democracy.
In the working paper I will present, I first explore the problem of constitutional development from a more general perspective. I argue that the issue can be understood as a paradox. On the one hand, we expect a constitution to provide a stable framework for government. On the other hand, constitutions need adaptive capacity in order to be able to endure as circumstances and demands change. The solution most countries opt for is to include a special amendment procedure in their constitutional document. Amendment procedures, however, are often too cumbersome which might force necessary constitutional change to assume other forms such as ordinary legislation, judicial decision or governmental practices. This phenomenon is what I call ‘silent constitutional change’. As a matter of fact, in many constitutional democracies, silent constitutional change seems to be much more common than formal amendment. Sometimes silent constitutional developments are perceived as perfectly legitimate. But it is also questioned whether alternative processes of constitutional change can functionally substitute the guarantees a formal amendment procedure seeks to provide.
Subsequently I explore the case of the Netherlands. I argue that the Dutch formal constitutional amendment procedure has been in functional disuse for almost a century. Extreme rigidity has forced necessary constitutional change to assume other, alternative, forms. Since 1917 the amendment procedure has not been used as an instrument to bring about substantive constitutional change. Indeed, major constitutional developments associated with the rise of the welfare state, Europeanisation and internationalisation have occurred without formal amendment. In many countries, this expectedly would have caused major problems with regard to the legitimacy of constitutional change and the predictably of the rule of law. In the Netherlands, however, the phenomenon of silent constitutional development remarkably has not fundamentally undermined the constitutional order: the functions of the amendment procedure seem to have been reasonably well substituted by deeply rooted consociational conventions and practices known as the poldermodel. This does not mean that the practical impossibility of formal amendment is entirely unproblematic. The paralysed constitutional document has blocked some institutional reforms that are arguably necessary in a contemporary constitutional democracy.
In conclusion, I argue that two lessons can be drawn from the case of the Netherlands that might be relevant for countries undergoing constitutional transition in the 21st century and that will face the challenge of constitutional change under a written constitutional document. First (1) written constitutions should not be too rigid. Second (2), just like formal amendment procedures, alternative means of change should also guarantee sufficient deliberation and the inclusion of minorities and small parties in the process of constitutional development. Whether elements of the Dutch poldermodel can be implemented in a constitutional law-making track of a country undergoing constitutional transition in the 21st century remains to be explored.
I have posted a draft version of the paper – tentatively titled ‘The Constitution of the Netherlands at 200: Adaptive Capacity and Constitutional Rigidity’- on SSRN. I invite you to read it and I would highly appreciate any comments or suggestions on the content!