Exploring the Function and Use of Requirements of Amendability in Global Constitutional Design

23 Pages Posted: 24 Nov 2015

See all articles by Reijer Passchier

Reijer Passchier

Leiden University - Leiden Law School

Date Written: November 20, 2015

Abstract

In the first part of the working paper I will put forward a theory of constitutional change that aims to illuminate what problem amendment requirements – procedural and substantive – exactly aim to solve. I will argue that, in constitutional democracies, the problem of constitutional change should be understood as a paradox: on one hand, written constitutions are intended to provide a stable framework for government; on the other hand, they need to have an adaptive capacity in order to be able to endure as circumstances and demands change. Including requirements of amendability can be seen as an attempt to solve this fundamental problem: it supposedly allows framers to carefully balance potentially conflicting demands of modern constitutionalism.

Secondly, I will ask what kind of amendment requirements written constitutions around the world include in an attempt to fulfil their difficult task. This section takes a multidisciplinary approach and tries to make a systematic inventory of existing constitutional requirements of amendability – procedural and substantive -. It will also count how many times different requirements of amendability occur in written constitutions around the globe. The basis of this inventory is the Written Constitutions Database which we are currently creating in Leiden. The Leiden Written Constitutions Database records characteristics with regard to the constitutional tasks of the judiciary, fundamental rights protection, supremacy clauses and qualified requirements of amendability of all the world’s national constitutional documents currently in force. The attempt of this paper to give a systematic overview of requirements of amendability of written constitutions represents the first attempt to use (part of) the data.

In conclusion, I will put forward an agenda for further research. I will argue that a global inventory may provide fresh inspiration for future constitutional framers. It may point to patterns with regard to which requirements of amendability are employed. Moreover, this first exploration may lay the groundwork for assessing the effectivity of different amendment requirements – and combinations of requirements - with regard to the task they were designed to perform.

Keywords: constitutional amendment, constitutional change

Suggested Citation

Passchier, Reijer, Exploring the Function and Use of Requirements of Amendability in Global Constitutional Design (November 20, 2015). Available at SSRN: https://ssrn.com/abstract=2693493 or http://dx.doi.org/10.2139/ssrn.2693493

Reijer Passchier (Contact Author)

Leiden University - Leiden Law School ( email )

P.O. Box 9520
2300 RA Leiden, NL-2300RA
Netherlands

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