Constituent Power and the Constituent States: Towards a Theory of the Amendment of Federal Constitutions
Jus Politicum: Revue de droit politique (2017) 17:5-31
Thinking about Federalism(s): Beyond the United States Experience conference, Yale Law School, 29-30 October 2015
32 Pages Posted: 14 Feb 2017 Last revised: 19 Feb 2017
Date Written: February 12, 2017
This article offers an account of constitutional amendment within federations that focuses on the underlying question of the relationship between the federation and its constituent states. Its starting point is the proposition that we cannot begin to understand constitutional change within federal systems without grappling with the fact that a federation is a polity composed of polities. The further premise of the article is that amendment clauses are closely related to, although not simply identical with, the constituent power underlying a constitution. It is argued that mechanisms of constitutional change within federal systems are best understood when related to the constitutive power upon which each federation is founded, and continues to operate. In federal systems, however, the location of constituent power is complicated by the existence of two sets of polities. Where in a federal system is constituent power located? Is it in the federation as a whole, the component states, or somehow both? This is both a theoretical and an empirical question. However, if close attention is given to the way in which constitutive power is effectively located and organised at the critical moment when a federal constitution is brought into being, it is possible to identify certain systemic consequences for the design of its formal amendment procedures. This, it is suggested, is because the exact way in which effective constitutive power is configured operates as a kind of presupposition in constitutional reasoning, as well as a locus of political power, which tends to have a systemic effect on the way in which constituted power is distributed within the resulting federal system. For, if a federation comes into being through an aggregation of previously independent states, there is reason to expect that many of the structural features of the federation will be in some important respects different from those of a federation that comes into being through a devolution of power within an originally unitary state. The way in which constituent power underlying the federation is configured is significantly different in these two cases, and given the close relationship between the power to make a constitution and the power to change a constitution, there is good reason to expect that the amendment procedure will reflect the aggregative or devolutionary origin of the constitution. By approaching the question of constitutional change in this way, the uniquely context dependent nature of the bargains that underlie the formation of federal constitutions can be assimilated, it is argued, into a theory that offers a generalised explanation of the amendment of federal constitutions understood comparatively.
Keywords: federalism, constitutionalism, constitutional amendment, revision, change, constituent power
Suggested Citation: Suggested Citation