BEYOND FORMAL CONSTITUTIONAL AMENDMENTS: DIFFERENT WAYS TO CHANGE A CONSTITUTION?
Panel formed with individual proposals.
It has been recently suggested that ‘comparative constitutional change‘ has developed into a distinct field of constitutional law. In parallel, there has been a growing recognition amongst constitutional scholars of an important distinction between the formal and informal aspects of a constitution. The informal constitution is now understood to comprise those aspects of a constitution that are ‘beyond‘ or ‘outside‘ the formally recognised sources of a constitution, such as the institutional practices of the state (i.e. ‘constitutional conventions‘), or ‘quasi-constitutional‘ legislation, that carry out the function of regulating the fundamental governance structures of the state. This paper will offer a conceptual framework for future comparative inquires into informal constitutional change, paying particular attention to the mechanisms behind informal constitutional change and the interaction between formal and informal aspects of a constitution.
Abusive constitutionalism undermines the liberal content of democracy, turning it more autocratic. Unger‘s idea of miniconstitutions, as temporary and experimental special regimes, conditioned to a democratically supervised ad hoc government branch, might be able to neutralize abusive constitutionalism. Miniconstitutions could protect the Constitution by appealing to mandatory practices of tested, time-diluted constitutional reforms, whose procedures and outcomes could be submitted to democratic scrutiny through plebiscites, referends, trans-federal consortiums and independent, supervisory institutions with elected members representing minorities, pressure groups and representatives of the constituted powers. Thus, miniconstitutions, by acting as similar to constitutional amendments, conditioned, experimented and democratically validated could, ultimately, be possible antidotes to practices of abusive constitutionalism.
This paper problematizes the relationship between interpretation and the scope of unamendabilility, and asks the following question: if the normative content of an unamendable principle had not been included in the text of the constitution but was instead established through interpretation, would the adoption of a new interpretative paradigm be considered as an ‘unconstitutional informal constitutional change‘? By drawing illustrative insights from the interpretative paradigm shift of the principle of secularism in Turkish constitutional practice, the paper argues that it might not always be possible to distinguish interpretation from the assumedly objective textual meaning, especially when substantial norms are at stake. This paper then concludes that even though ‘unconstitutional informal constitutional change‘ might be regarded as a logical consequence of constitutional unamendability, the interrelatedness of interpretation, unamendability and unconstitutionality unveils concrete practical difficulties, which require further theoretical reflection.
Scholarship recognizes that courts make constitutional change through judicial review. On the other hand, when constitution-making and constitutional reform processes develop outside courts, judges are depicted as mere spectators. I propose a new theoretical approach to address the role of courts in these cases. I study the Brazilian Supreme Court as an interest group during the constitutional assembly of the 1988 Constitution. I hypothesize that judges try to drive the result of decision-making processes according to their interests. In order to do so, I classify the Court‘s goals as (i) institutional preservation, (ii) corporatist interests, and (iii) power expansion. I also explore the direct and indirect tools of Court lobbying. Surprisingly, the constitution-making process in Brazil shows that the Court may be reticent to defend power expansion provisions due to other concerns. My objective is to expand the agenda of examining the role of constitutional judges beyond courts.