Implicit Constitutional Change--Changing the Meaning of the Constitution Without Changing the Text of the Document

Max-Planck Institute, Institutional Economics Unit, Working Paper No. 12/98

33 Pages Posted: 29 Dec 1998

See all articles by Stefan Voigt

Stefan Voigt

University of Hamburg - Institute of Law & Economics; CESifo (Center for Economic Studies and Ifo Institute)

Multiple version iconThere are 2 versions of this paper

Date Written: October 1998

Abstract

Constitutional change is often thought of as explicit constitutional change, i.e., as change that implies a modified wording of the constitutional document. In this paper, the possibilities of implicit constitutional change, i.e., change that is not accompanied by formally changing the constitution, are analyzed. The separation of powers a la Montesquieu is taken as a starting point and it will be argued that constitutional change can be brought about by all government branches, i.e., by the executive, the legislature, and the judiciary. If this argument is accepted it follows that the judiciary--even when endowed with the competence of judicial review--is not the ultimate arbiter in supervising constitutional change. It is the main hypothesis of this paper that the judiciary in bringing about implicit constitutional change is subject to a number of constraints among which the original document plays a rather marginal role. Instead, it is claimed that the current preferences of the other government organs as well as those of the population are more relevant in ascertaining the meaning of the constitution at a given point in time.

JEL Classification: D78, K40

Suggested Citation

Voigt, Stefan, Implicit Constitutional Change--Changing the Meaning of the Constitution Without Changing the Text of the Document (October 1998). Max-Planck Institute, Institutional Economics Unit, Working Paper No. 12/98, Available at SSRN: https://ssrn.com/abstract=131431 or http://dx.doi.org/10.2139/ssrn.131431

Stefan Voigt (Contact Author)

University of Hamburg - Institute of Law & Economics ( email )

Johnsallee 35
Hamburg, 20148
Germany
+49-40-428385782 (Phone)
+49-40-428386794 (Fax)

CESifo (Center for Economic Studies and Ifo Institute)

Poschinger Str. 5
Munich, DE-81679
Germany