Constraining Constitutional Change

Abstract

This paper, presented at a symposium on Constitution-Making and Constitutional Design held at the Clough Center for the study of Constitutional Democracy at Boston College Law School on October 31, 2014, tackles a significant gap in constitutional theory -- the legal regulation of constitutional replacement. Recent work has recognized the risks posed by constitutional amendment to democracy and has developed a series of tools to mitigate those risks. In particular, would be authoritarian actors can engage in abusive forms of constitutional change that perpetuate their power and marginalize minority groups. In response, courts around the world have recognized that amendment can be limited in ways that go beyond the standard textual regulation of procedure to encompass both substantive ex ante controls (eternity clauses) and substantive ex post controls (the unconstitutional constitutional amendment doctrine). Constitutional replacement is usually seen as fundamentally different from constitutional amendment, but the two are often used jointly in projects of abusive constitutional change. Scholars and courts should thus consider ways in which constitutional replacement might be limited. The same list of possibilities utilized to constrain constitutional amendment -- substantive as well as procedural limits, and ex post as well as ex ante controls -- exists to constrain constitutional replacement. Moreover, each of these possibilities has actually been used, with varying degrees of success, in constitution-making processes in contexts like Venezuela, Bolivia, and South Africa. The key question is under which political conditions these tools might be effective. Based on the case studies, we suggest that those conditions are demanding but not impossible to meet in real-world constitution-making.

Keywords: constitutional replacement, abusive constitutionalism, constitutional amendment, unconstitutional constitutional amendment

JEL Classification: K30, K39