A 'Speed Bump' Against Abusive Constitutionalism: Redesigning the Constitutional Replacement Doctrine

65 Pages Posted: 24 Jun 2020

See all articles by Kate Crichton

Kate Crichton

Victoria University of Wellington, Faculty of Law, Student/Alumni

Date Written: 2019

Abstract

Constitutional endurance touches on a number of important aspects of constitutional theory and practice. The tension between constitutional stability and constitutional flexibility is one aspect of this puzzle. Formal constitutional amendability seeks to balance these competing constitutional design qualities by providing a “roadmap” for the alteration of the constitution. However, amendability may also be used to the constitution’s detriment. In the past, constitutional unamendability, including the constitutional replacement doctrine, has provided stability by preventing the abuse of amending powers. However, in recent years “abusive constitutionalism” has changed the nature of the constitutional endurance question. The growing global body of anecdotal evidence suggests that the traditional limits on amending powers are currently ineffective against this phenomenon and may even form part of an abusive constitutionalist strategy. The question arises: how should the balance be re-struck in response to abusive constitutionalism? This is a complicated question. Abusive constitutionalism is a multifaceted issue because would-be authoritarian leaders use a variety of techniques to further their anti-democratic goals. Despite these difficulties, this paper explores how the doctrine of implicit limits – also known as the constitutional replacement doctrine (CRD) – might be enhanced to operate more effectively against abusive constitutionalism. The paper explores possible internal and external solutions. The solutions build on the doctrine’s strengths which make it particularly well-suited to an abusive constitutional context whilst mitigating the doctrine’s weaknesses.

Keywords: "constitutional replacement doctrine", "abusive constitutionalism", unamendability

JEL Classification: K00

Suggested Citation

Crichton, Kate, A 'Speed Bump' Against Abusive Constitutionalism: Redesigning the Constitutional Replacement Doctrine (2019). Victoria University of Wellington Legal Research Paper No. 39/2020, Available at SSRN: https://ssrn.com/abstract=3634267 or http://dx.doi.org/10.2139/ssrn.3634267

Kate Crichton (Contact Author)

Victoria University of Wellington, Faculty of Law, Student/Alumni ( email )

PO Box 600
Wellington, Victoria 6140
New Zealand

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