Comparative Constitutional Theory
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Comparative Constitutional Theory

Edited by Gary Jacobsohn and Miguel Schor

The need for innovative thinking about alternative constitutional experiences is evident, and readers of Comparative Constitutional Theory will find in its pages a compendium of original, theory-driven essays. The authors use a variety of theoretical perspectives to explore the diversity of global constitutional experience in a post-1989 world prominently marked by momentous transitions from authoritarianism to democracy, by multiple constitutional revolutions and devolutions, by the increased penetration of international law into national jurisdictions, and by the enhancement of supra-national institutions of governance.
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Chapter 16: Amendment theory and constituent power

Mark Tushnet

Abstract

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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