Comparative Constitutional Law 2 PDF

Unit 1 What is comparative constitutional law? A. De nition 1. We can de ne Comparative Constitutional Law (hereafter: CCL) as an intellectual activity aimed at the identi cation, classi cation, explanation and evaluation of similarities and di erences existing between selected constitutional systems. 2. But what is a constitutional system? We may de ne it as the structure of a legal and political order (as a rule, but not necessarily, a national one) as resulting from its fundamental law(s). Indeed, the constitution is the set of fundamental norms on which a legal and political order is grounded. B. Origins 1. A brief sketch on the origins and evolution of the eld. CCL was already practiced in ancient Greece. For instance, it is said that in order to develop his theory of government in Politics, Aristotle relied on comparative materials, namely on a collection of 158 Greek city states constitutions. Later, comparative analyses of institutions were undertaken also by Machiavelli and Montesquieu with a view to, respectively, formulate precepts for good government or illustrate the possible forms of political rule. Moreover, CCL was particularly relevant in the aftermath of the American and French revolutions as a source of inspiration and legitimation of new institutional arrangements of the rst modern constitutions (see Unit 2). 2. With the adoption of national constitutions and the rise of legal positivism in the XIX century, we witness a domestic turn of legal studies. Constitutional studies become more self-referential and introvert: rather than drawing from the wealth of constitutional experiences to devise creative solutions and critical re ections, constitutional scholars focus their attention on the interpretation of constitutional texts. In this period comparative legal studies develop mainly in the eld of private law; although there are important exceptions, CCL is neglected and comparative institutional studies are carried out by political scientists. 3. CCL re-emerges as an autonomous academic discipline post-World War II as part of the movement rejecting legal positivism viewed as impotent against totalitarianism. In this phase, CCL is marked by an evident ideological accent and it is entrusted with the task of boosting liberal constitutionalism against totalitarianism rst in the drafting of new constitutions (see the cases of France, Italy and Germany), then in the context of the Cold War. In this perspective, a major contribution to the eld is o ered by Carl Friedrich, a German-American constitutional scholar who revived the eld with a particular emphasis on topics such as the protection of fundamental rights and judicial review of legislation. 4. Comparative constitutional studies experienced a particular success after 1989. In the following decades, CCL was developed and employed to promote the transition to constitutional democracy in Europe (particularly, in Central Eastern Europe) and beyond (e.g. South Africa, Latin America). Moreover, CCL played a key role in the processes of internationalization of national constitutions (i.e. interpretation of national constitutions in the light of foreign legal experiences or international law) and constitutionalization of international law (i.e. development of international and supranational systems of protection of human rights). C. Who compares? 1. There are mainly three subjects who employ CCL in their activities: scholars may base or enrich their analyses or theories with comparative elements; constitutional adjudicators increasingly tap into foreign constitutional experiences and precedents to gain insights for deciding their cases; constitutional legislators make frequent use of CCL in their activity of constitutional design. 2. Constitutional scholars tend to privilege an observer perspective, i.e. they operate as onlookers exploring the particular features of the objects of comparison from an external standpoint. Their activity may result in both descriptive and prescriptive contributions. 3. By contrast, constitutional adjudicators and constitutional legislators tend to operate in a participant perspective. Their approach to CCL is neither detached nor driven by explanatory or theoretical concerns, but it is instrumental to the solution of particular problems, often in accordance of explicit or implicit political priorities. As a consequence, more than in the case of constitutional scholars, recourse of CCL in this latter perspective is frequently strategic. 1 fi fi fi fi fl fi fi fi ff fi fi fi ff fi D. Why comparing? The latter point brings us to the purposes of CCL. We may distinguish essentially three main purposes: 1. Improving knowledge/educational aims Studying a constitutional concept or a speci c institution with a view to a variety of experiences may broaden our understanding, also that of our own constitutional systems. Consider the example of judicial review of legislation, i.e. the constitutional function consisting in the judicial scrutiny of legislation in the light of constitutional norms and the varieties of forms in which it can be organised (decentralised/centralised; direct or indirect access; weak or strong forms: see Unit 8). In this perspective, CCL often leads constitutional scholars to elaborate classi cations and, in certain circumstances, normative assessments. 2. Theoretical and critical purposes a. This brings us to the possibility of using CCL as a theoretical and/or critical tool. Comparative methodologies may help us to distil commonalities in constitutional systems and traditions (identi cation of universals: similar legal problems, similar solutions: for instance, upper chambers in federal systems to enable the representation of federated entities at federal level) b. In other circumstances, comparative constitutional analysis may suggest to emphasise the particularity of a speci c constitutional concept. By highlighting the embedded nature of institutional settings, CCL may be used also to reject the adoption of foreign constitutional models and debunk hegemonic tendencies (consider the debate on the circulation of judicial review of legislation in the interwar period, E. Lambert, Le gouvernment des juges). 3. Practical purposes CCL is used for a variety of practical purposes: a. For constitutional legislators, CCL is a source of inspiration for constitutional design: consider, for instance, the adoption of the parliamentary form of government in Europe in the aftermath of World War II or the in uence of the US Presidency in the presidential systems of many South American countries; b. For constitutional adjudicators, CCL may be a source for constitutional interpretation. The possibility to tap into this resource is related to the discretion that as a rule constitutional judges possess in adjudicating cases concerning the protection of constitutional rights. Indeed, constitutional provisions are often framed in open- textured terms and, as a consequence, they may lend themselves to a variety of possible constitutional interpretations (remember the example on the right to marry: can articles 12 ECHR or 29 of the Italian Constitution be interpreted as protecting same-sex marriages?) In principle, foreign law or foreign judicial precedents can be employed by courts in a variety of ways: i) they can be mentioned to support a solution already achieved under national law; ii) they can be mentioned and distinguished in order to explain the peculiar nature of the domestic constitutional system; iii) they can be relied upon to justify the need for the domestic constitutional system to align with a broader consensus emerging at global or regional level. The use of foreign precedents in constitutional adjudication is at the centre of a lively debate: (a) Only in the constitutions of South Africa and Zimbabwe is the recourse to foreign law by courts explicitly authorized (see articles 39(1) c) Constitution of South Africa and 46 Constitution of Zimbabwe) (b) in the USA, courts tend to disregard foreign precedents. Yet, the issue was addressed two decades ago when the majority opinions in two important Supreme Court’s judgments referred extensively to foreign law (they were Lawrence v Texas (2002), on sodomy laws, and Roper v Simons (2005), on death penalty for juvenile o enders). Beside these judgments the issue was discussed by Justice Scalia and Justices Breyer and Kennedy (see the Conversation between Scalia and Breyer included in the reading materials). While on both sides of the discussion there was agreement on the fact that foreign law is not an authoritative source, the latter argued in favour of its use in adjudication on the assumption that judges often cope with similar problems and the solution elaborated by their colleagues in other jurisdictions can be an important source of inspiration. Scalia, conversely, opposed the practice on the assumption that judges must decide their cases in the light of domestic law only and that the use of foreign sources is highly exposed to the risk of manipulation and cherry- picking. 2 fi fl fi fi ff fi (c) In Europe, the approach to the use of foreign precedents is more relaxed. German professor Peter H berle suggested that comparative law should be viewed as a fth interpretative method (alongside textual, systematic, historical and teleological interpretation) to apply constitutional rights provisions. Support for this approach has been strengthened by the membership to the European Union and the European Convention on Human Rights. (d) Moreover, comparative constitutional law has played an important role in the practice of both the Court of Justice of the EU (CJEU) and the European Court of Human Rights (ECHR). The CJEU has decided to use comparative constitutional law in the 1970s in the context of dealing with constitutional questions relating to the protection of fundamental rights under the Treaty of Rome, a document which did not include a catalogue of fundamental rights. In these peculiar circumstances, the CJEU decided to o er a highly original form of judicial protection to the fundamental rights common to the constitutional traditions of the EU member states (remember the Nold case of 1974). Comparative constitutional law was a key source to detect the existence of “common constitutional traditions”. Likewise, the ECHR uses comparative constitutional law in human rights cases when it has to decide whether on a speci c issue a “European consensus” exists or, by contrast, the “margin of appreciation” doctrine must be applied (remember Schalk and Kopf v Austria (2010), on same- sex marriages, and Lustig-Prean and Beckett v United Kingdom (1999), on the right of homosexual individuals to serve in the army). 4. “Constitutional Borrowing”, “migration of constitutional ideas”, “legal transplants” a. Formulas such as “constitutional borrowing”, “migration of constitutional ideas”, “legal transplants” are used in CCL to to describe a normal occurrence in the eld of public constitutional law: in drafting a new constitution, foreign models are frequently borrowed or transplanted; by contrast, it is very rare that constitution-makers or adjudicators develop autochthonous constitutional models. As a rule, foreign models are borrowed and adapted to speci c circumstances. b. How can a constitutional model become in uential? There are 3 ways through which constitutional models can become popular: i)some constitutions become in uential models for other countries because of the political and cultural hegemony of their countries which contributes to their reputation (which can be good or bad). An example in this regard is o ered by the judicial review of legislation. This legal institution was introduced in the US constitutional system in early 19th century in the case Marbury vs Madison. For all the 19th century this model remained con ned to the US. Only after the Second World War did it become popular and spread globally. It was imported in European countries and it was adapted to the local circumstances. Another example of good reputation is the parliamentary form of government which was conceived in the UK (the so-called “Westminster model”) and was then exported all across Europe thanks to its high reputation. ii) constitutional models can become in uential also via imposition. Certain constitutional models were imposed in certain countries. This often happens after wars in the losing countries. As an example we may consider German federalism. At the time of the writing of the German constitution, West Germany was a state under military occupation by the Allies. Even if it was given to the Germans the possibility to write their Constitution, the members of the Convention knew they had to comply with some desiderata of the allied powers, such as the fact that the new German Constitution had to have a strong decentralization of power and so federalism was key in this sense. Imposition could also be found in countries that were once colonies and then became independent such as Canada, that was once a Dominion of the UK and its form of government was and still strongly in uenced by the Westminster model. iii) The circulation of constitutional models can be enabled by conditionality. In this scenario, countries incorporate foreign model as a quid pro quo for their membership in international organizations or their participation in their programs. For instance, after the fall of the Berlin Wall (1989) the EU established the Copenhagen criteria (democracy, rule of law, market economy, protection of minorities) as prerequisites for the accession of the countries of Central Eastern Europe. These criteria weren’t imposed, because these countries independently decided to join the EU. However, in order to become members they had to ful ll some criteria. Another example regards the countries who receive nancial assistance from the International Monetary Fund (IMS). Over the last 40 years, in fact, the nancial assistance of the IMF comes with a sort of condition, a quid pro quo for nancial assistance that requires economic reforms: e.g. the central bank of the state should be independent. c. After constitutional models are transplanted the consequences can be di erent: 3 fi ä fi fl fl fi fi ff ff fl fl fi fi fi fi fi ff i) Sometimes certain constitutional models are simply adopted by the borrowing country. An example of that is the borrowing by the Spanish founding fathers of the conception of substantive equality expressed in the art. 3(2) of the Italian Constitution. This article deals with the principle of substantive equality, meaning that not only all the individuals are equal but also all the obstacles that prevent the equal participation of individuals in the political, economic and social life should be removed. This principle became a key element of the Italian constitution and the same principle has been borrowed in 1978 to be used in the Spanish constitution (section 2 of art 9 Spanish constitution) after the end of Franco’s dictatorship [see slides]. ii) The opposite scenario could also happen, meaning that a constitutional model could also be rejected. After the Second World War, in Italy, some of the founding fathers expressed their interest for the adoption of the US presidential system. However, the idea of a strong executive power after the experience of fascism was feared. Presidentialism was rejected and parliamentary government was introduced in the Italian constitution. iii) The third and most frequent scenario is the adaptation of constitutional models to local circumstances. Consider the case of judicial review of legislation: as said, this function was originally conceived in the US in a decentralized form (each judge is authorized to review legislation in the light of the constitution). After World War II it was imported in Europe and adapted to local circumstances. Accordingly, the function was assigned to ad hoc bodies (constitutional courts) and not to any court as in the case of the US. Similarly, when juridical review of legislation was exported to countries such as the UK, New Zealand and Canada, it gave rise to what has been identi ed as a weak form of juridical review of legislation. 5. Otto Kahn-Freund, ‘On uses and misuses of comparative law’ a. Otto Kahn-Freund was a prominent labour law scholar. He had served as a judge in Germany during the interwar period. With the rise of nazism he had to move to the UK where he became a legal scholar.In 1974 he was asked to give lectures for the journal “ modern law review “ regarding the topic of uses and misuses of comparative law. b. In the article Otto Kahn-Freund discusses the practical uses of comparative law. c. In the rst place, he discusses the topic against a background characterized by three phenomena: i) the international uni cation law, referring in particular to the eld of commercial law or transport law; ii) the use of foreign law for legal models in legislation as a response to ongoing social changes (for instance, in the eld of family law) iii) The use of foreign law to produce social changes. This phenomenon is considered the most controversial. d. He refers to the widely used metaphor of the “transplant” and asks: are legal institutions entities destined to be accepted or rejected by a living organism or pieces to be inserted in a mechanism? In other words, should we compare legal institutions to kidneys or to carburators (and constitutional systems to living organisms or mechanisms)? c. He recalls that, according to Montesquieu, transferability of legal institutions was regarded as an exceptional occurrence since institutions are tailor-made in the light of the speci c characters of a country. He emphasizes the existence of context-dependent environmental variables (such as geography, climate, social and economic elements, political) preventing or obstructing the transplant of a legal institution. d. From this insight, he claims that there is an inverse correlation between the degree of transferability of an institution and its level of embeddedness. Accordingly, the higher the level of embeddedness, the lower the degree of transferability (and, as a re ection, the higher the risk of misuses of comparative law as a tool of legislative reform); the lower the level of embeddedness, the higher the degree of transferability (and the possibility of using comparative law without engendering a rejection of the legal institution at hand). e. He observes that in the 1970s political factors had gained importance while environmental and cultural ones had decreased in their in uence. In other words, compared to Montesquieu’s times, he detects on the one hand a process of industrial, social and cultural assimilation, on the other increased political di erentiation. In contemporary world, he identi es three political obstacles to legal transplants: i) the gulf between communist and non communist world (or democracies and dictatorships) ii) endless variations on democratic themes iii) increased role of organised interests in making and maintaining legal institutions. The latter is considered the strongest contemporary organic element in law. f. Labour law examples are o ered of both legal institutions with high and low level of transferability. 4 fi ff ff fi fi fl fi fi fl fi fi Have constitutions a high or low degree of transferability? It depends on the legal system. Consider the examples of the British constitution, which is highly embedded, and, on the other side, that of Bosnia-Herzegovina, which is part of the Dayton agreement which put an end to the war in Yugoslavia and for which there is not even an o cial version in local languages. E. How do we compare? a. There's an important di erence between comparative legal studies and studies in foreign law. (ex. writing an article on German federalism and critically discussing its evolution is a study on foreign law). In order to have a comparative law product, there needs to be at least two legal systems involved in order to nd their similarities and di erences, to explain them, to classify them and sometimes to assess them. The knowledge of foreign law is useful as a preliminary material for comparison. b. In order to develop an accurate comparison it is not su cient to look at the “law in the books” (the text of the constitution or of relevant legislation) but we need to look at the “law in action”. Written law is important but partial material because in order to really understand how a speci c institution operates, we need to enrich our analysis with other elements concerning the real life of the law. That includes case law (how the law is interpreted by the judges) and the practices developed on the basis of the constitution. Consider the case of the French constitution of 1958. This document does not include a bill of rights. Yet, starting in 1971 the Conseil Constitutionnel has begun to o er some protection to the rights included in the Declaration of the Right of the Man and of the Citizen (1989) and in the Preamble of the 1946 Constitution with the bloc de constitutionalit doctrine. Moreover, also the actual operation of the semi- presidential system requires the consideration of the practices developed by Presidents (in particular, the ‘presidential reading’ of the Constitution by De Gaulle). c. Methodologies to approach comparative constitutional law: Universalism: this methodology approaches constitutional materials in order to extract from them principles of good government and justice. Comparative constitutional lawyers that employ the universalist approach are not really interested in the peculiarities of a speci c constitutional system, because they look for analogies existing between a set of constitutional systems to develop general principles of good government (remember Aristotle) Historical approach: comparative lawyers are interested in tracking the evolution of a speci c legal institution and its in uences. They look at them in a temporal dimension to understand how they have evolved and on the basis of which in uences. Consider the case of the principle of proportionality, conceived in the 18th century in Prussia administrative law, evolved in Germany as a principle of constitutional law and from there exported globally). This methodology tries to track how the ideas have evolved and migrate to other constitutional systems. Functionalism: a variety of approaches are included in this methodology. Functionalist constitutional lawyers are interested in mapping how constitutional systems in the world respond to common issues. The job of these lawyers is to map the variety of solutions given to the same problem by di erent constitutional systems and sometimes to assess and evaluate them. This methodology tends to neglect the political, cultural, social and economical circumstances below the constitutional systems. If we consider the language of Otto Kahn- Fruend, functionalists tend to look at constitutions as mechanisms and are very open to legal transplants. Contextualism: unlike functionalism, this methodology emphasizes the di erences and the peculiar nature of a constitutional system because of its historical trajectory and its speci c context-dependent variables. Contextualists look at the particularities of constitutional systems and, if we consider the language of Kahn- Freund, consider them as living organisms that have been generated by peculiar local circumstances.Therefore the contextualists are skeptical of legal transplants, their approach is to understand how constitutional systems have developed in di erent realities. In their view, the similarities we nd between constitutional systems are super cial and a good comparative constitutional lawyer in order to understand that has to do a deeper analysis. Montesquieu can be considered a forerunner of this approach. 5 ff fi fi é ff ff fl ff ff fi fl ffi ffi ff fi fi fi fi Unit 2 Constitutions: de nition and classi cations a. This unit introduces a set of concepts and de nitions which will be useful for the rest of the course. Constitutions will be de ned and classi ed rstly on the basis of their legal characteristics and then on the basis of their leading political ideas. b. We have de ned the constitution as a set of fundamental norms on which a legal and political order is grounded. We can add that the constitution (a modern constitution) accomplishes a number of tasks: (a) attribution of power to public authorities (b) regulation of fundamental relations between public authorities (c) regulation of fundamental relations between public authorities and individuals (society). c. The notion of constitution should not be confused with the concept of constitutionalism, i.e. the philosophical movement, ideology and type of legal culture aimed at establishing limits on public powers with the view to protect private autonomy (since the end of 18th century, identi ed with fundamental rights). The rise of constitutionalism is part and parcel of the broader historical process of the formation and transformation of the modern European state. This process is the result of the combination of two distinct trajectories: (a) the territorial concentration of political power (sovereignty) (b) the limitation of political power through rules, constraints and participatory instruments (constitutionalism). B. Traditional constitutions 1. The concept of “Traditional constitutions” refers to the constitutional experiences dating back to the Ancien R gime (prior to the American and French revolutions). Before these revolutions the term “Constitution” was used in a descriptive way, to account the situation of a country which was made of several elements, such as its geography, climate, population, the language spoken and also the fundamental laws. Nowadays the term “Constitution” is used in a prescriptive way, therefore it identi es the fundamental norms and it explains how the political and legal organization of a country ought to be. 2. The society in which the traditional Constitution operated was strongly shaped by the experience of feudalism. The pre-modern society was composite in nature, because it was the sum of a set of social and political groups which were not uni ed, as there wasn’t any entity nor political institution capable to represent them comprehensively (no sovereign). Moreover, individuals were not conceived as free and equal, but their status resulted from their a liation to these social groups. 3. Because of the nature of the pre-modern society, the traditional constitution was the set of norms regulating the relationships between these political and social groups. These norms were either customary or conventional. A custom is a norm which is inherited from the previous generations, it is repeated in time (diuturnitas) and it comes with the awareness that the society obeys to it because its perceived legal in nature (opinio iuris). On the other hand, conventions are agreements or political arrangements between the di erent social groups. The sum of these conventions and customs were regarded as the fundamental Laws of a society, which is the functional equivalent of the constitution, because they ful lled, at least in part, a similar task. 4. These norms aimed at preventing despotism and arbitrary political power, but also preserved the composite nature of the society. Equality was seen as destabilising, because, during the Ancien R gime, political thinkers were afraid that, by dissolving the social groups, individuals could be at risk as exposed to the most powerful political actors. 5. Fundamental laws were not constitutive in nature, they didn’t establish the social bodies, which, on the contrary, emerged spontaneously from social practice; in addition to that, the fundamental laws’ binding nature was controversial, even though they were considered legal in nature, their capacity to constrain political power could not be taken for granted (for instance, in the UK, Sir Edward Coke theorised the fact that the common law would bind the British parliament, but this doctrine was not accepted). 6. The traditional constitution played an important role in western legal thinking: a. In Hegel’s opinion (expressed in his Philosophy of Mind, 1830), the traditional constitution is not something that you can make, on the contrary it is a spontaneous cultural artifact emerging from national spirit. To understand this notion, we could compare the constitution to a language; nobody can create a language, because it is something that developed from national spirit, therefore in order to learn it you need to be exposed to that language. Hegel is conveying the same idea for the constitution, which is not an act of political will, but it emerges from deep- seated social and political processes. 6 é fi é fi fi fi fi fi fi fi ff fi fi ffi fi b. Following Edmund Burke (in his Re ections on the Revolution in France, 1790), the constitution is an inter-generational partnership, which binds the former generations with present and future ones. From his point of view, we understand that the traditional constitution was a result of the strati cation of customs and traditions. Thus, the traditional constitution did not correspond to overarching and comprehensive rational design but resulted from processes driven by pragmatic considerations. C. Modern constitutions 1. Modern constitutions emerge in a context in which sovereignty becomes tangible and the possibility of having a single political entity that represents the entire society emerges. In addition to this, the claim of equality is no longer viewed as destabilising, on the contrary it becomes attractive, even though i its full implementation is far from being achieved (slavery, disenfranchisement). These are the two preconditions for the establishment of the modern constitution. a. According to A. Hamilton (in Federalist 1, 1788, a collection of articles which explain the content of the American constitution to the people of the State of New York in order to persuade them to vote in its favour), the American people had to decide whether to establish a modern constitution (“good government”) based on re ection and choice, or to remain with the traditional one (resulting from “accident and force”). There is not a society made of a composite set of social groups anymore, on the contrary, there are people who are considered free and equal individuals and who have the possibility to constitute good government. From this point of view, the constitution is an act of political will resulting from a popular deliberation. This notion resonates with the concept of constituent power introduced by Emmanuel Sieyes, whose idea is that the constitution can be created as the result of an act of political deliberation and will. b. A similar notion is articulated by Thomas Paine (in Rights of Man, 1791), whose opinion is that the constitution is antecedent to the government, which is its creature. Government is established by the constitution; therefore, the latter is not the act of the government but of the people. Through the constitution, the people can create government. The relationship between the constitution and the government is the same as the one between the court and the laws made by the government, in which the court cannot modify the laws; likewise, government cannot modify the constitution. In this passage, Paine envisions the dualist structure of the constitution: in a society political power can be exercised in two ways: i) in constitutional politics, the people create the institutions of government and regulates their activity (the people binding government); ii) in ordinary politics, government makes laws binding the people. Ordinary politics is subordinate to constitutional politics (as laws are subordinate to the constitution). Summarizing, according to Paine, the Constitution is a thing, it is a written document, it is antecedent to government and it has a constitutive character. The constitution is also comprehensive: no legitimate power can exist outside the constitution. The constitution is the higher law, because it has been authored by the people, and it binds the government and its laws. D. The legal characteristics of the modern constitution 1. There is a di erence between written and codi ed constitution. All modern constitutions are written, because the writing crystallizes the content of that political will, it makes it clear, but it also symbolises the political achievement. However, not all written constitutions are codi ed. A constitution is codi ed when the constitutional norms are included in a single document (consider the Italian or the Spanish constitution). In other cases, the constitution is made up of several constitutional acts which include norms of a constitutional nature that have been adopted in di erent times (consider the case of Israel, where the constitution is made of several Basic Laws). 2. There is a di erence between constitution in a formal and substantive sense. The constitution in a formal sense refers to norms included in a constitutional document (or more in the case of a non-codi ed constitution). Yet there are norms that are constitutionally relevant, which are not part of the constitution in a formal sense. For instance, constitutions usually do not regulate the election system, even though it is constitutionally relevant. Electoral legislation can be considered part of the constitution in a substantive sense. 3. According to the German scholar Karl Loewenstein, constitutions can be normative, nominal or semantic, according to their e ectiveness. Normative constitutions aim and succeed into shaping the legal and political reality; they are meant to shape the legal reality and they succeed in doing so. Nominal constitutions are meant to shape the legal and political reality but they fail to do it because of some resistances in the society or in the political system. Semantic constitutions are 7 ff fi fi ff ff fi ff fl fl fi fi not meant to shape the legal and political reality. They re ect the political reality without imposing binding rules on political institutions (for instance the socialist constitutions). 4. There is a di erence between foundational and modifying constitutions. The rst ones aim at creating government, while modifying constitutions (or “semi- constitutions”) aim at regulating pre-given or inherited institutions (for instance the Statuto Albertino, 1848). These constitutions have been popular in continental Europe after the Congress of Vienna and the Restoration, when monarchs decided to concede constitutions in order to prevent revolutions. 5. There is a di erence between formal (or procedural) and substantive constitutional constraints. Substantive constraints are visible when the constitution imposes certain contents on the activity of government. On the contrary, constraints are formal when the constitution establishes procedures binding the activity of government. For instance, Article 79 of the German Basic Law contains includes formal constraints on the constitution-amending power: i) the constitution can be amended only in an explicit way ii) a constitutional amendment requires the consensus of 2/3 of the members of the Bundestag (the parliament) and 2/3 of the votes expressed by the Bundesrat (the institution representing states’ governments). Substantive constraints are established in the third paragraph, where it is cited that the division of federation into L nder, the participation of the latter in the legislative process, and the principles included in article 1 (human dignity) and 20 (democracy, federalism, the social state) cannot be amended. 6. Constitutions are comprehensive. All public authority is derived from the constitution; therefore, no legitimate authority can be exercised outside the constitution. The constitution still leaves some gaps in some speci c matters (the economic model, for instance), in order to allow the room for democratic competition. 7. According to Thomas Paine, the Constitution is a legal document that binds governments. Most of the modern constitutions aspire to bind all the branches of government, they make a claim to supremacy. Examples: According to the German Basic Law (Art. 1 par. 3): The following basic rights shall bind the legislature, the executive and the judiciary as directly applicable law. and according to Article 20 of the German Basic Law: The executive and judiciary are bound by legislation and justice and legislation is bound by the constitutional order; so, also the executive and the judiciary are indirectly bound by the Constitution. In the South African constitution, the Bill of Rights applies to all the law and binds the legislature, the executive and the judiciary powers: the idea of binding government through constitutional principles spread worldwide. 8. Related to the higher nature of constitutional norms is the di erence between Rigid (or entrenched) constitutions and exible constitution. Rigid constitutions bind all the three branches of government, they occupy a pivotal position in the constitutional system, they are the supreme law of the land. Rigid constitutions cannot be amended by ordinary legislation as they are the expression of a broader consensus re ecting the underlying social contract. Constitution- amending clauses require more demanding procedures including supermajorities or referendum. Flexible constitutions can be amended by ordinary law-making.The British Constitution and the old Italian Statuto albertino are examples of exible constitutions. 9. Rigid constitutions may include parts of the constitution that cannot be subject to constitutional amendment (the superconstitution, visible in the so-called heternity clauses) Consider for instance article 79 (3) of the German Basic Law establishing substantive limits to constitutional amendment;, if the German people will to get rid of those principles, an entirely new constitution is needed (see also article 139 of the Italian Constitution). 10. It is important also to distinguish constitutions with or without judicial review of legislation, the possibility for courts or a constitutional court to control legislative acts in the light of constitutional norms. Originally this function was established by the US Supreme Court in the case Marbury v. Madison (1804). However, in that period the idea was controversial as witnessed by the opposition to it by Thomas Je erson (see Unit 8). Alternative ways experimented in the 19th Century to secure the supremacy of constitutions were the criminal prosecution of constitutional breaches or the political responsibility of lawmakers. It is important to understand that entrenched constitutions do not necessarily have judicial review of legislation (the Netherlands are an example) and vice versa. Flexible constitutions do not need judicial review of legislation because they can simply be amended through ordinary law. 8 ff ff fi ff fl fl fl fl ff fi ä 11. In Grimm's chapter, the legitimacy of constitutions. is discussed He makes a clear distinction between constitutions based on an absolute truth and constitutions based on popular consensus. Constitutions based on an absolute truth (religious or secular) are adopted in societies in which a political party in imposing its own ideology as an absolute truth. One example is the case of Iran: after the revolution of 1978-1979, the government of the Republic of Iran has established an institutional setting based on a certain version of Islam and has imposed the latter as a absolute truth. Therefore, a competing truth cannot be accepted, and alternative ideologies are viewed as heresies to be suppressed. The constitution plays an instrumental role in articulating and safeguarding the pre-given truth. In most of these cases, the constitution fails to constrain the institutions or the individuals regarded as having a superior insight on the common good based on a religious truth. Constitutions based on a popular consensus do not to rely on a single ideology, but on the agreement between the main political forces in the society. This is valid for the Italian constitution, for instance. Therefore, the legitimacy of the constitution is grounded at the origins on a broad popular consensus. The great challenge for consensus-based constitutions is to generate a political culture to sustain the original pact also in future generations. E. Constitutions in the light of their leading political ideas 1. Constitutions are acts of political will resulting from a popular deliberation, therefore it is perfectly admissible that they re ect the main political ideas of the time and of their authors. 2. Liberal democratic constitutions a. The main purpose of these constitutions is to constrain government on behalf of individual liberty. Their underlying political philosophy re ects to John Locke’s political theory. Locke was in uential in the writing of the rst modern liberal democratic constitution: the US Constitution. He thought that individuals in their state of nature were normally in the position to recognize and respect each other’s freedoms and individual rights. This was a quite optimistic view compared to Hobbes’ political theory who, by contrast, conceived of individividuals in the state of nature in a condition of insecurity and intractable con icts b. Liberal democratic constitutions subscribe to a dualist conception of democracy: the people is conceived as expressing two distinct forms of political will: (a) the constituent power which is a form of political will that relies on consensual policy and de nes the basic rules and institutions of the constitutional system (b) ordinary politics, the manifestation of political will by a contingent political majority, which is subordinate to the constitution. c. The democratic nature of this constitution emerges (a) in the popular conception of constituent power (b) in the recourse to representative government in the institutional architecture. d. The liberal element is visible in (a) the commitment to protect individual liberty (b) in a strong notion of separation of powers (c) the protection of constitutional rights through judicial review of legislation. 3. Liberal non democratic constitutions: a. This category refers to experiences of semi-constitutions. These constitutions do not originate from an act of popular political will or follow a democratic process; they are unilaterally granted by the king and lack any constitutive dimension. Their underlying goal is to mitigate the discontent expressed by certain parts of the society and avoid revolutions by co-opting the most moderate political outsiders. b. Semi constitutions are exible constitutions, and their primary goal is to reject absolute power by introducing into the government selected socio-political actors. They try to accommodate the traditional idea of constitution with the political claims of the emerging liberal society. The result are constitutions that develop mainly liberal elements such as (a) the separation of powers (b) the protection of individual freedom vis-a-vis the executive power. The democratic element on the other hand is strongly underdeveloped: parliaments are census-based, formed by an upper chamber (representing the aristocracy and the clergy) and a lower chamber which represents only a small fraction of the population. 4. Democratic non liberal constitutions a. These are constitutions of radical democracies where the democratic element prevails over the liberal ones. They favor a monist conception of democracy, in which the people is viewed as expressing a single political will re ecting the preferences of the parliamentary majority. Therefore, their main aim is to establish a correct and organized political process in order to secure the representation of the general will into government. 9 fl fl fi fl fl fl fl fi b. Democratic non liberal constitutions only bind the executive and the judiciary but not the legislature. As a consequence, they are exposed to the risk of the “tyranny of the majority” which may culminate in an authoritarian drift. 5. Social states constitutions a. Until now, we have seen constitutional setting based on the permutation of liberal and democratic elements. Today we are going to add a third element: the social element. This relates to the notion of substantive equality and social justice and it is a motif that appeared already during the French revolution. It refers to the ideals of galit and fraternit (solidarity and emancipation of individuals against economic insecurities and the vagaries of unregulated markets. The social question came to play a prominent role in the second part of the 19th century with the industrial revolution. b. The infusion of social elements in the constitutional system could bring about 3 di erent scenarios: a) The social element (the policy responses to the social question) can be inserted in the previous/ present constitutional system without changing it. Social policies are juxtaposed to the previous policies without modifying the identity of the constitutional system. Consider the case of Germany under the rule of Otto von Bismarck, when the rst elements of a system of social protection were established to prevent insurrections and revolutions from the outsiders. Here, the social element coexists with a liberal non-democratic constitution. b) The social element is inserted in the constitutional system and prompts changes to its nature. The transformation of the constitutional system can be undertaken through the re-interpretation of previous constitutional texts (consider the case of the US Constitution, re-interpreted with a view to enable activist government after Roosevelt won with a landslide the 1936 elections and threatened to “pack” the Court (i.e. appoint new judges to overrule laissef-faire precedents such as Lochner). In other jurisdictions, the insertion of a social element required the enactment of a new constitutional text (consider the case of the Weimar constitution of 1919 enshrining economic and social rights. In both cases, we achieve a similar outcome: the constitution is not a single- class manifesto (of the leading social class), but it expresses the aspirations of a broader set of social and political actors. Accordingly, it does not dictate a particular policy agenda, but it mainly enables democratic competition. c) The social element can also determine a break with the previous liberal/non- liberal constitutional system. This is the case of socialist constitutions resulting from a revolutionary movement succeeding in putting an end to previous political and constitutional systems (see below). c. In the aftermath of WWII, social state constitutions are adopted with a view to (a) institutionalizing and mediating social con icts (b) preventing/tackling abuses perpetrated by previously unconstrained legislatures. d. In order to ful l their task of institutionalizing and mediating social con icts, democratic constitutions are expected to be inclusive. This entails their open character: (a) rather than prescribing a policy agenda, they provide instruments enabling the acting out of con icts within the constitutional platform (key role of legislative assemblies; (b) long catalogues of constitutional rights, including economic and social rights; (c) open-ended formulation of constitutional principles and goals). e. The goal of preventing legislative abuses leads the authors of social state constitutions to rehabilitate the liberal-democratic idea of an entrenched constitution enforced by constitutional adjudicators. Constitutional rights are elevated to limits to the legislative and political process. f. Also in Europe the supremacy of the constitution is related to its popular genesis: in highly fragmented societies, the exercise of constituent power as an attempt to reach political unity by means of compromises on the basic rules of coexistence. The supremacy of the constitution, however, is not grounded only on the popular character of constituent power but also on its contents consisting in local instantiations of the principles of the Universal Declaration of Human Rights (ambivalent nature of post-WWII constitutionalism: positivism and natural law). By relying on supreme and entrenched fundamental laws, social state constitutionalism embraces a dualist conception of democracy. g. The supremacy of the constitutions is evident in its axiological superiority and its capacity to shape the entire legal order (“radiating e ects” of constitutional principles; see articles 1 and 20 of the German Basic Law and the L th case in Unit 9). 10 fi ü ff fl fi é é è fl fl ff 6. Socialist constitutions Adopted in systems in which the social question brings about a break with the liberal past or the non-liberal past. This rupture is visible in the abandonment of the commitment to individual freedom and democracy. These are constitutions based on secular truth (marxism). Constitutions assign powers to the Leninist avant-garde party which is viewed as the main interpreter of the absolute secular truth. Constitutional norms do not constrain the party. The constitution has an instrumental role, it provides the instrument to the single party to implement its own political program and they then register the outcomes, real or supposed, of policy-making. 7. Cosmopolitan constitution a. This is a notion conceived by the legal philosopher Alexander Somek referring to national constitutions that operate in the conditions of international engagement. They are based on a strong commitment to international cooperation and multilateralism. b. Why do constitutions commit to multilateralism? A commitment to multilateralism is for countries like Italy and German after World War II and Spain (1978) and South Africa (1996) like a readmission “ticket” to the international society It is a way to re-grain admission in the international society. c. It is often said that this commitment to multilateralism is “democracy enhancing” (membership in international organisations enhances the quality of national democratic life). Multilateralism can improve the quality of national democracy in four ways: a) Membership in international organizations can strengthen the fundamental principles of the constitution (consider the case of the ECHR). b) Membership in international organisations can increase political capacity allowing national democracies to deal more e ectively with cross-border issues such as climate change, terrorism, migration. c) International organisations can improve the protection of under-represented social groups (such as consumers or women) often exposed to the risk of “regulatory capture” by stronger interests in society. d) Although the cosmopolitan constitution is generally democracy-enhancing, there are circumstances in which multilateralism can be democracy inhibiting, i.e. encroach on the ordinary operation of national democracy (consider the austerity programmes imposed in countries like Greece, Spain, Portugal, Italy during the Eurozone crisis). d. In continental Europe the experience of international membership a ects profoundly national constitutions constitution. The latter can attribute political powers to the EU (in particular through the so-called “integration clauses”) but once that power is delegated, it cannot be subject to national constitutional constraints. That power is subject to supranational constraints: the EU has developed principles that are functionally equivalent to the national constitutions. This type of constitutionalism is rather strong in protecting liberal elements but weak in providing protection to the democratic and social elements. Thus, In contemporary Europe we live in a situation in which national social state constitutions have evolved into cosmopolitan constitutions, broad swathes of political powers have been assigned to EU institutions, but once power is conferred to Brussels, it is exercised in an institutional framework marked by evident democratic and social de cits. Unit 3 Constitution-making and constitutional-amendments A. The issue Who makes constitutions? How are they made? How can constituent power be exercised? How are constitutions modi ed? What is the di erence between constitution-making power and constitution-amending power? B. Constitution-making 1. The way a constitution is made is inherently associated with its nature. Traditional constitutions result from processes of incremental evolution (strati cation) and from practices of constitutional maintenance. As said, they do not entail the exercise of constituent power (although it was in 17th century England that constituent power was rstly imagined). By contrast, modern constitutions are characterised by the exercise of constituent power; they are the results of political processes culminating in the enactment of a constitutional document (often, but not necessarily, related to revolutionary moments). 11 fi ff ff fi fi ff fi 2. To start with, it is important to recall and clarify the distinction between constituent and constituted power (introduced by Emmanuel Si yes, but developed also by the American Founding Fathers). a. Constituent power can be de ned as (a) the power to establish the constitutional order of a political community; the source of production of constitutional norms. As a rule, it is regarded as an (b) extra-legal source operating irrespective of legal constraints (primary or original constituent power; potentially arbitrary). We may witness the exercise of constituent power at the outset of a constitutional order; yet, constituent power may occasionally re- assert itself from within the constitutional order (as a rule, dormant/lingering). In its original rendering, constituent power was conceived as an act of (c) popular self-determination (it emerges in parallel with the idea that the authority of government rests on the consent of the people conceived as an active political force). However, from a theoretical perspective, constituent power may also be exercised by non-popular actors (charismatic leaders, armies, religious leaders, etc.) b. Constituent power predates and is superior to constituted powers, i.e. the institutions determining how public power is exercised (government, in US vocabulary). Unlike constituent power, constituted power remains subject to constitutional constraints. 3. Constitution-making is rarely palingenetic. It entails (a) the negation of pre- constitutional identity of the legal and political order (See preambles of, SAC or articles 1 GG or 3 IC) (b) the a rmation of a new constitutional identity; often by selective reincorporation of past constitutional materials (Bundesrat; Decreto- legge) [See the preamble of the South African Constitution and excerpt from Rosenfeld] C. Constitution-making processes 1. Constitution-making processes can be classi ed by considering the identity of the constituent subjects (the sovereign) and the modes in which constituent power is exercised. 2. We can rstly identify internal processes: constituent power is exercised by autochthonous political actors, i.e. political agents belonging to the legal and political order where the constitution is destined to operate. They include: (a) monarchical processes: the constitutional text is unilaterally granted by the Monarch, often under political pressures by the people/emerging social classes. The unilaterally adopted constitution endows the people/emerging social classes with the right to participate in the exercise of political power (see above, semi- constitutions, exible constitutions); (b) Democratic processes (or revolution-based model): exercise of constituent power by the people in indirect (representation in conventions or constituent assemblies: politics rising above routine con icts to embrace non-partisan and long term perspective) or direct (referenda) ways; the problems of legal and social legitimacy as the revolutionary momentum fades away (loyalty of the losers): Constitution-making in Italy 1. As Fascism declines, attempts to restore the previous constitutional order (the Statuto Albertino) are opposed by political parties resisting Fascism. After 1943 a provisional constitution is adopted announcing a) the establishment of a Constituent Assembly and b) an institutional referendum on the form of state (monarchy or republic). Both elections are held on June 2 1946 for the rst time with universal su rage. 2. The elected Constituent Assembly provides broad representation of the Italian society, with no single political party or coalition possessing a self-su cient majority (political parties as constitutional subjects). Its working is characterised by a) the constraint on the form of state (Republic, see article 139 IC b) political parties operate under a ‘veil of ignorance’ (Rawls). The Veil of Ignorance is a way of working out the basic institutions and structures of a just society. According to Rawls, working out what justice requires demands that we think as if we are building society from the ground up, in a way that everyone who is reasonable can accept. We therefore need to imagine ourselves in a situation before any particular society exists; Rawls calls this situation the Original Position. The work of the Constituent Assembly proceeded on the basis of a preliminary draft elaborated by the ‘Committee of 75’. The resulting document is voted by almost 90% of the members of the Constituent Assembly. It enters into force in 1948 without popular referendum. 12 ffi fi fi fl fi ff è fi ffi fl France 1. The background of the 1958 Constitution is constituted by the short-lived 1946 Constitution. The latter was adopted after the 1945 referendum decided to discontinue the Third republic (dating back to the Constitutional Statutes of 1875). A Constituent Assembly was elected: a rst constitutional draft was voted down in a popular referendum; a second one was barely approved. 2. Although it established an institutional framework aimed at correcting certain dysfunctions of the previous constitution (parliamentary government, dual executive), the 1946 Constitution was marked by the same problems of political instability (21 governments between 1946-1958). 3. De Gaulle: the Bayeux Speech of 1946 (in which he expresses the need of a new constitutional architecture based on a stronger role for the President) and the temporary withdrawal from active politics. 4. Problems with political instability come to a head with the rebellion of Algiers and the war of independence. The incapacity of government to rule in Algeria induces part of the army to invoke a return to politics of General de Gaulle in order to prevent a military coup. De Gaulle accepts to serve as Prime Minister under the condition of reforming the Constitution (charismatic leader as constitutional subject). 5. Soon after his approval, the National Assembly enacts a constitutional statute authorizing the drafting of a new constitution. The ensuing text - the 1958 Constitution - is endorsed by a referendum (71.2% majority; direct popular involvement). (c) federal processes: constituent power results from acts of conferral of sovereign powers to the federal entity by federated entities (federated entities as constitutional subjects; coming-together; see Unit 4, ‘Federal Big-Bang’): 1. The US constitutional experience begins with the struggle for independence by the 13 British colonies in the aftermath of the French and Indian Wars. Disappointment with the British Parliament imposing rules and taxes on colonies without representation. 2. Declaration of Independence (1776) and successful war against Britain. Each state sends its representatives to a Continental Congress and set up a confederation based on the Articles of Confederation (e ective since 1781). The confederation reveals not particularly e cient in foreign and military a airs (lack of raising taxes power) and in the coordination of state economies. Two conventions (Annapolis, Philadelphia) are called to amend the Articles of Confederation (unanimity required). 3. The Philadelphia Convention decides a complete overhaul of the Articles: the processes followed entails multiple breaches of article XII of the Articles of Confederation [see slide] (d) constitutional transitions (or pacted transition model): in case of transitions from a form of political rule to another, the exercise of constituent power may result from a sequence of constituent acts which may include the adoption of interim constitutions. It normally occurs in situations in which emerging political actors are not as powerful as to defeat declining political incumbents. The new constitutional order emerges from negotiations and does not produce breaks in legality: Spain 1. The context in which the 1978 Constitution is enacted is in uenced by two previous constitutional experiences: a. The 1931 Constitution: a progressive though partisan document entrenching a left-leaning political agenda and open to devolution of powers to regions; b. The dictatorship established after the Civil War (1936-1939), relying on the support of conservative and clerical forces; it generated an illiberal political regime, internationally insulated and contrary to regionalization and cultural diversities. 2. At Franco’s death (1975), there is a clear perception that the authoritarian regime lacks legitimacy. Yet, opposition forces are too weak to overturn it (leaders in jail or exiled; general climate of political apathy). These circumstances allow a gradual and negotiated transition towards democracy (ruptura pactada): a. A key role is played by King Juan Carlos and the prime minister Adolfo Su rez opening a negotiation with the opposition forces at that time outlawed; b. A Law for political reform (Ley para la reforma politica) amending Franco’s fundamental rules is adopted in 1977 by the old Cortes (here, important in uence by the King) and a rst referendum. The principle of popular sovereignty is a rmed, fundamental rights are protected and a road map towards a new constitutional system is de ned; c. The conditions for new democratic elections are established; in particular, opposition parties are legalized 13 ff ff ffi fi fl fl á fi ffi fi d. In 1977 a new parliament is elected which appoints a Parliamentary Committee on Constitutional Matters entrusted with the task of writing a new Constitution. A draft is elaborated by the Ponencia (a group of 7 politicians/experts within the Committee). This draft constitutes the basis for negotiations in Parliament marked by secrecy/opaqueness (elitist genesis). e. The Constitution is approved by a broad parliamentary majority and a referendum (91%). From a legal perspective, there is continuity with previous constitutional system (the Law of Political Reform respected). South Africa 1. The South African Constitution of 1996 has been adopted against a background of political, social and economic struggles product of colonialism and apartheid. Pre-democratic constitutionalism evolved according to the following steps: a. Creation of the Union of South Africa (1910), unity of colonies under British colonial power under the South Africa Act. The South Africa Act establishes a bifurcated state based on a) a Westminster-style government for white settlers grounded on the principle of parliamentary sovereignty b) autocratic administration by the Governor-General for black South Africans. This system creates di erential spheres of citizenship for Europeans and native populations; b. After the independence (1931), a Republican Constitution is adopted in 1961 establishing parliamentary sovereignty and rejecting the idea of an entrenched Bill of Rights (open acceptance of legislative encroachments on fundamental rights); c. In a context of increasing international insulation and internal resistance, adoption of a new constitution in 1983 based on a tricameral legislature and the entrenchment of the franchise to the Indians and colored population (white predominance secured). This constitution generates widespread rebellions and violence justifying repeated states of emergency. 2. The transition towards democracy entails the shift from a regime based on parliamentary sovereignty to a constitutional democracy. This takes place in two stages: a) the rst stage develops in a climate of violence and protests and it is based on the negotiation by the main political parties (in particular, National Party and African National Congress, which had been unbanned in early 1990s). Negotiations are marked by the con ict between three positions: a) the ANC, interested in convening a democratically elected constituent assembly with a view to gauging the relative negotiating power of political parties; b) the NP, interested in legal continuity with the previous constitutional system: their preferred outcome is an institutional system similar to the 1983 constitution but including also black population; c) the IFP, proposing a ‘neutral constitution’ written by international experts and supported by the parties and a national plebiscite. 3. After repeated suspensions, mass mobilization and intensi cation of political violence, the NP government accepts a government of national unity, a democratically elected Constituent Assembly operating under constraints established in an Interim Constitution formally enacted by the tricameral parliament. The Interim Constitution requires a) the respect of 34 constitutional principles b) approval by 2/3 majority in the Constituent Assembly (The Constituent Assembly is not a separate body, but the parliament working in joint session) c) certi cation of the Constitution by the Constitutional Court. 4. The Final Constitution is deliberated in the Constituent Assembly (composed by 62% ANC and 20% NP) with broad participation and publicity. It is voted by 87% of the members of the Constituent Assembly. The rst draft is subject to the certi cation of the Constitutional Court, but a number of violations of the constitutional principles is found. A second amended version of the document receives certi cation and is promulgated. 3. There are then external processes: constituent power strongly in uenced by actors foreign to the relevant legal and political order. The constitution is in part or entirely adopted by foreign powers; only at a later stage, when the state acquires sovereignty, constitutional autochthony is re-established on the basis of the existing document via constitutional amendment or constitutional interpretation. These processes are visible in: (a) constitutional orders emerging after war-defeats (or war-based model): radical rupture with the past and the problem of securing social legitimacy to the new constitutional order; Germany 1. The German Basic Law was enacted under the occupation of Western Allied Powers; East Germany was under Soviet control. Its main purpose was to provide an entirely new foundation for a liberal and democratic society after the catastrophe of the Third Reich. It was based also on 14 ff fi fi fi fi fl fl fi fi the idea of coping with the causes for the authoritarian drift, identi ed in the de ciencies of the Weimar Constitution (1919). 2. The Western German states had democratic constitutions drafted by popularly elected assemblies and rati ed by the people. The German States can be regard as the main constitutional subjects engaging with constitution-making (similar to constitution-making in federal systems). The new constitution was deliberated and enacted by the Parliamentary Council (Parlamentarischer Rat), an ad hoc body of 70 members elected by the newly established state parliaments. The new constitutional document was rati ed by states parliament (2/3 majority required; only Bavaria opposed). 3. The Parliamentary Council worked under considerable in uence by Allied forces: a) before convening the Parliamentary Council, the 11 Prime ministers of the German States received the Frankfurt Documents requiring the establishment of a constitutional order based on federalism, democracy and the protection of fundamental rights (see art. 79(3) of the Basic Law) b) the activity of the Parliamentary Council was conducted under close oversight by the Allies (several interventions aiming in particular at more decentralization of the institutional architecture). 4. The original plan of the Allies was to have a new constitution drafted to be rati ed by popular referendum. The Parliamentary Council rejected the idea on the assumption that only a re-uni ed Germany could exercise popular constituent power and have a constitution properly so called (see article 146). For this reason, the new constitution was called Basic Law (Grundgesezt) rather than Constitution (Verfassung). Although the Basic Law was considered provisional, the reuni cation process was carried out under article 23 of the Basic Law permitting the Eastern Laender to join the Federation; the article 146 procedure was not employed. 6. Despite its weak democratic legitimation, the Basic Law has generated broad social consensus (constitutional patriotism) and its legitimacy is undisputed. (b) constitutional orders resulting from processes of decolonization. Canada 1. Canada constitutional history dates back to the tensions between French and British colonies in 17th and 18th century, ended with the displacement of French colonies by the British. Under British rule, two main processes take place a) repeated failed attempts at assimilation of the French-speaking populations (language, religion, legal system) and subsequent accommodations b) struggles for the establishment of accountability of unelected Governors by elected assemblies, resisted by the British government fearing ‘American republicanism’. 2. In order to cope with these issues, a Canadian Confederation is established by the British Parliament with the British North America Act (1867). The Confederation originally includes four provinces (so, it is a peculiar confederation made of non-sovereign entities) but it expands towards West encountering resistances by local and Aboriginal populations coped with a mix of force and accommodation. The BNA Act is regarded as the founding document of Canada but British supremacy is evident in a) subordination to the British Crown b) foreign policy conducted in London c) appointment of Governors-general d) Privy Council as last instance court e) quali ed British legislative supremacy f) British citizenship... and the fact that the BNA was a British legislative act! 3. Canada increases constantly its independence. It participates autonomously to World War I and the League of the Nations. In 1931, the Statute of Westminster recognises complete legislative independence to the Dominions. Yet, enduring ties with Britain remain in a) the Crown b) essential constitutional documents remain British statutes (they are amended by the British Parliament under Canadian impulse). 4. The conditions for the ‘patriation’ of the Canadian Constitution are established only in 1982 with the approval of the Constitution Act. Also the Constitution Act is an act adopted by the British Parliament. Yet it contains a set of amending formulas allowing the Canadian political institutions to modify the text of the constitution and, as a result, to re-appropriate the constitutional text. (c) Constitution-making under international supervision (or internationally grounded model): constitutions are adopted in processes including strict supervision by international authorities providing support, guidance, facilitating consensus and compensating for de ciencies in national political processes (it is particularly useful where local political forces reveal unable to undertake a pacted transition) (see the case of Timor Est). 15 fi fi fi fl fi fi fi fi fi fi D. Constitution-amending power We can de ne the constitution-amending power as the function aimed at the correction, repair or improvement of a constitutional text. 1. Constitutional amending power: the three main purposes a. Changing speci c aspects of the constitution: The constitution amending-power can be used to modify limited parts of the constitutional text without a ecting its identity of the constitution. It can concern speci c substantive, institutional or procedural aspects. Example: In 1913, the 17th amendment to the U.S. Constitution introduced the direct election of senators, which previously were elected only by state legislators. In 2000 the French Constitution was amended to shorten the term of o ce of the President of the Republic. 2. Introducing major changes to the constitution: In other circumstances, the constitution-manding power can be employed to change broad parts of the constitution, even with the possibility of changing its identity. So, how can we distinguish the exercise of the constitution-amending power and constituent power? According to a rst approach, the constitution-amending power is visible when the constitution- amending clauses are complied with. By contrast, constituent power is at issue only when the constitution is amended regardless of those constitutional procedures. However, this approach fails to explain cases of constitutional transitions (constitution-making in South Africa and Spain) in which constituent power was exercised but legal continuity with the previous constitutional order was retained. In this kind of circumstances, secondary, or derived, constituent power is at work and the di erence between constituent power and constitution- amending power depends on whether the constitutional identity has been transformed or not. 3. Democratic dialogue with constitutional adjudicators (in case of strong judicial review of legislation, see Unit 8): the constitution-amending power can be used to overcome constitutional precedents when certain interpretations of constitutional norms turn out to be, for some political forces, unacceptable. Example: The Dred Scott’s case (1857) in which the US Supreme Court had ruled that African Americans could not invoke the Bill of Right in front of a court and that the Congress had no power to ban slavery. This ruling was overcome with the Civil War Amendments banning slavery, ensuring the equal protection of law and empowering Congress to act accordingly. E. Balancing stability and adaptability in Constitution In framing constitution-amending clauses, constitution-makers have always to strike a balance between two rival concerns: a) Stability: if a constitution is too stable (rigid), so it is too di cult to amend, it may become obsolete and informal changes can occur. b) Adaptability: if a constitution is too easy to amend, the constitutional system is unstable. Each political majority may modify the system on the basis of its own interests, with the risk of an illiberal drift. Therefore, it is necessary, for a constitution, to be both stable and adaptable. However, the degrees of stability and adaptability of a constitution depend on the structure of the political system. For instance, the British Constitution is exible, but until the early 2000s it was seen as stable, due to a strong constitutional culture that avoided frequent amendments. F. Analysis of constitution-amending clauses 1. Italian Constitution: Article 138 provides two main procedures for amending the Italian Constitution: a) Amendments shall be approved by both houses of the Parliament after two debates on the same text, with an interval between them of at least 3 months. The second deliberation requires an absolute majority. The amendment must be rati ed through referendum if requested, within three months of the second deliberation, by: I) 1/5 of the members of one house II) ve regional councils III) 500k voters 16 fi ff fi fi fi fi ffi ff fl ffi fi b) The referendum is not held if the amendment has been approved by each house, in the second deliberation, with, at least, a 2/3 majority. Article 139 is the eternity clause which forbids the amendment of the republican form of state. In 1988, the Constitutional Court, has interpreted article 139 as limiting amendments also on certain fundamental principles of the Constitutional identity. The same ruling established the jurisdiction of the Constitutional Court to review constitutional amendments on substantive and procedural ground. 2. German Basic Law: Article 79 establishes one procedure to amend the constitutional text: Amendments must be approved by a 2/3 majority of the members of the Bundestag (the federal parliament) and by a 2/3 majority of the votes of the Bundesrat (the federal council, representing the federated states). This dual requirement ensures that both the federal legislature and the states are involved in the amendment process, emphasizing the federal nature of Germany’s political system. In order to secure a broad consensus on the constitutional amendments, high supermajorities are established. 3. French Constitution According to article 89 there are two possible constitution-amending procedures: a) The amendment is approved by the National Assembly and by the Senate (the two houses of French Parliament), then it will be rati ed through a referendum. b) The referendum is not held if the President of the Republic convenes the Parliament in Congress, which is a joint meeting of both houses. The constitutional amendment must be approved with a 3/5 majority. There are also speci c limitations on constitutional amendments: I) The republican form of state cannot be amended II) No amendment procedure can be initiated or continued when the integrity of the national territory is threatened 4. US Constitution: Article V spells out four potential procedures for amending the constitution. All procedures are articulated in two phases respectively at federal and state level: a) The Congress must approve the amendment with a 2/3 majority in both houses. b) As an alternative, a constitutional convention can be established by Congress (both houses deciding with a 2/3 majority) to propose amendments. (This procedure has never been used). c) After a proposal pass in the Congress, it must be rati ed by the legislatures of at least 3/4 of the states (38 states out of 50) d) Alternatively, rati cation may occur in ad hoc state conventions (at least 3/4 of them must vote in favour). The Us Constitution establishes two limits to the amending power: I) No amendment made before 1808 could a ect the slave trade II) No State, without its consent, shall be deprived of its equal su rage in the Senate. 5. South African Constitution: Section 74 outlines is a multi-track constitution-amending clause, i.e. it de nes di erent procedures depending to the subject matter of the amendment: a) Fundamental principles (section 1) can be amended by a bill passed by a 3/4 majority of the national assembly and by 6 out of 9 provincial delegations in the National Council of Provinces (NCOP). b) The Bill of Right (chapter 2) can be amended by a 2/3 majority of the national assembly and by 6 out of 9 provincial delegations in the National Council of Provinces. c) Any other provision requires a 2/3 majority of the national assembly and if the amendment: I) relates to a matter that a ect the NCOP; II) alter provincial boundaries, powers, institution or functions; III) concerns provision that deals speci cally with a provincial matter, it also requires the approval of 6 out of 9 provincial delegations. (1) Di erence between total and partial amendment of the constitution. Certain constitutions distinguish between a total amendment of the constitution, which may entail a profound 17 ff fi fi ff fi ff fi fi ff fi ff transformation of the constitutional identity, and the partial amendment of the constitution, allowing speci c changes to the constitutional text. (2) Di erence between primary and secondary constituent power. Primary constituent power refers to the creation of a constitution or its complete overhaul, which is not bound by existing constitutional rules. Secondary constituent power, on the other hand, involves the power to amend the constitution within certain limits, allowing changes without disrupting the constitutional identity. Is a total constitutional amendment a procedure meant to regulate derived or secondary constituent power? It depends. We have de ned secondary constituent power as a manifestation of constituent power exercised in accordance with constitution amending clauses (legal continuity is preserved but the constitutional identity is modi ed). If the total amendment of the constitution changes the constitutional identity, it is an exercise of derived constituent power. However, it is also possible to have a total amendment of the constitution which does not a ect the constitutional identity. By contrast, in the case of Spain and of South Africa we have a total amendment of the constitution and a manifestation of derived or secondary constituent power. 6. Spain In Spain the distinction between a total and partial amendment is signi cant. 1. Section 167, deals with partial constitutional amendments: it spells out 2 procedures, involving the 2 Houses of parliament, the “Cortes Generales”, precisely the Congress and the Senate. The Congress is the lower House of parliament representing Spanish citizens. The Senate is the upper chamber which represents local authorities. The rst procedure to approve a partial constitutional amendment is meant to nd an agreement between the two Houses on the same text and to obtain a broad majority, 3/5 of the members of each House. If the two Houses disagree on a text, section 1 introduces the possibility of a Joint Committee made by an equal number of members of both Houses and its task is to negotiate the text which could nd the support of both Houses. This attempt could be unsuccessful. If it is successful, the procedure goes on with the possibility of a referendum (see below). If it fails, there is a backup option: the constitutional amendment can be approved by 2/3 of the Congress and an absolute majority of the Senate. Once the amendment is passed it can be summited to a referendum only if requested by 1/10 of the member of either Houses. Section 168 regulates the total amendment of the constitution or the amendment of parts of the constitution that a ect the constitutional identity (the fundamental principles of the constitution, fundamental rights, the status of monarchy). This part of the constitution can be amended in Spain, but the procedure is much more demanding. A 2/3 majority is required in the Cortes Generales. If approved, the Cortes are dissolved and there are new general elections. The new Cortes have to approve the text again with a 2/3 majority and afterwards a referendum is held 2. Spain's constitutional system has never been totally amended, demonstrating the rigidity and protective nature of its constitutional amendment procedures, particularly concerning its core identity. G. Eternity Clauses Certain constitutional choices may receive absolute protection from amendment through ‘eternity clauses’ (identifying unamendable constitutional provisions) [See articles 139 IC, 79 (3) GG, 4 Turkey]. There is intense debate on the possibility for constitutional or supreme courts to review constitutional amendments in the light of eternity clauses (or on procedural grounds): France France has an eternity clause and an entrenched constitution. If a constitutional amendment is approved in breach of the eternity clause, the Conseil constitutionnel doesn’t have jurisdiction to review the exercise of the constitution-amending power. In 1962 De Gaulle embarked in a const

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