Edited by Gary Jacobsohn and Miguel Schor
Chapter 16: Amendment theory and constituent power
Abstract: Constitutions typically have mechanisms defining how they may be amended (and, sometimes, replaced). Amendments are often desirable to correct newly discovered problems with the original text, or to address new problems of governance. But developing a theory of amendment is surprisingly difficult. After first examining debates over amendment theory in the French Constituent Assembly and the United States Constitutional Convention, this Chapter relates amendment theory to the idea that constitutions are made and remade by a nation’s “constituent power”. Placing some constraints on some kinds of constitutional amendments is consistent with the idea of a constituent power, but in general that idea supports the conclusion that the process of constitutional amendment cannot, in the end, be constrained by the constitution whose amendment is in question. This account provides some insight into the currently popular view that, in some nations, constitutional provisions dealing with the constitution’s “basic structure” cannot be amended at all. The ultimate conclusion is that constitutional provisions dealing with the amendment process are best understood as prudential recommendations from the constitution’s authors to their successors, not as binding legal constraint.
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