Constitutional Evolution: Amendment Versus Replacement in Comparative Perspective

56 Pages Posted: 31 Aug 2015

See all articles by Kenneth Mori McElwain

Kenneth Mori McElwain

University of Tokyo - Institute of Social Science

Jean Clipperton

Northwestern University - Department of Political Science

Date Written: December 29, 2014

Abstract

We explore why some national constitutions adapt to domestic and foreign challenges through incremental amendments, while others are abandoned and replaced wholesale. Existing studies point to the importance of constitutional scope, or the range of enumerated issues. We go further by disaggregating constitutions by their specificity on human rights versus political institutions. Using historical and cross-national data, we demonstrate that the specificity of rights reduces the probability of replacement, while the specificity of institutions increases the frequency of amendments. Constitutions that proscribe the government from violating a larger share of human rights mitigate bottom-up pressure for wholesale constitutional replacement, improving longevity. By contrast, the merits of enumerating institutions vary with country- and history-specific contexts. Institutions can be fixed, adapted, or manipulated without fundamentally altering state-society relations, thus motivating incremental amendments instead of replacement.

Keywords: constitutional design, amendments, human rights, political institutions

Suggested Citation

McElwain, Kenneth Mori and Clipperton, Jean, Constitutional Evolution: Amendment Versus Replacement in Comparative Perspective (December 29, 2014). Available at SSRN: https://ssrn.com/abstract=2653169 or http://dx.doi.org/10.2139/ssrn.2653169

Kenneth Mori McElwain (Contact Author)

University of Tokyo - Institute of Social Science ( email )

Hongo 7-3-1
Tokyo, TOKYO 113-0033
Japan

Jean Clipperton

Northwestern University - Department of Political Science ( email )

601 University Place (Scott Hall)
Evanston, IL 60201
United States

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