Constitutional Reserves and Covert Constitutions
Indian Journal of Constitutional Law, Vol. 3, pp. 84-104, 2009
21 Pages Posted: 3 Apr 2009 Last revised: 10 Nov 2009
Date Written: April 3, 2009
Most constitutions around the world resist amendment by simple majorities. In this way they try to protect the basic constitutional structure of a country's system of government against whimsical change. They do so by setting procedural constraints on constitutional amendments, e.g. qualified majorities, or substantive ones, e.g. by requiring that some subjects or issues can only be settled by way of a constitutional amendment (constitutional reserves). This contribution studies the phenomenon of these constitutional reserves in various constitutional systems. It elaborates the concept of a constitutional reserve and assesses its effects. On that note it looks into the question whether or not rigid constitutions and constitutional reserves typically trigger bypasses of laborious constitutional amendment procedures, which in turn results in covert constitution building. In conclusion, the contribution discusses - in more general terms - the advantages and disadvantages of constitutional reserves and questions whether a theoretical framework would be helpful for constitutional practice.
Keywords: constitution, rigid constitution, amendment procedure, constitutional reserve, comparative law, vorbehalt des gesetz
JEL Classification: H10, K10, K20
Suggested Citation: Suggested Citation