CHANGING THE CONSTITUTION Interpreting The Book Constitutional Amendments: Making, Breaking, and Changing Constitutions, by Richard Albert.

0
346

 – Milton César Jiménez Ramírez*

Constitutional reform helps prevent constitutions from becoming inert, outdated or out of touch from social factors and from generational aspirations and constitutional interpretations. It responds to evolutionary phases anticipated by a constitution, so that, following specified rules or procedures, a change in its text can be implemented without affecting its structure, identity or the rights which it protects.[1]

Constitutional change is not a totally discretionary derived constituent power (a power generally held by the legislature and, when called upon to elect representatives, by the citizenry); it is an activity carried out following specified procedures while preserving consistency with respect to delineations set out as fundamental constitutional principles by the originating holder of constituent power.[2] As in the case of the law itself, the power of constitutional reform can be used in an abusive or disproportionate manner,[3] promoting reforms that conform to neither the premises on which constitution was adopted nor to societal expectations (i.e., amendments that reverse, decay or disintegrate a constitution and its essential elements). This has been referred to as constitutional dismemberment by Albert – a concept that differentiates the objectives of amendments between those that involve rational and limited change and those that exceed the limits foreseen for the amendment process, instead resulting in a new constitution.

This book review seeks to discuss and validate some of the main contributions made by Richard Albert in his book Constitutional Amendments: Making, Breaking, and Changing Constitutions, contributions which the author finds commendable. To such end, this book review will briefly present and discuss concepts presented and questions raised that highlight the value and quality of Albert’s work, especially those relating to conceptual description of “dismemberment”, to the applicability of sociological legitimacy to constitutional reforms, and to constitutional review of thereof. Finally, it will assess the impact of research and of academia on the practice of comparative law and arrive at some brief conclusions.

I. Mediating the Constitution: Reform versus Dismemberment

Constitutions require a scheme that provides an appropriate foundation for the proper functioning of a State. This includes concepts such as fundamental rights, separation of powers, the rule of law and democratic principles, as well as those that ensure adequate citizen participation and decision making and promote functional legal, political and economic systems.[4] Every society incorporates principles and values ​​to which it subscribes, however, constitutional design norms prevalent in American and European constitutional experiments neglect to adequately focus on detailed structures and processes for constitutional reform, both with respect to how it should be exercised and with how it should be evaluated for consistency with principles underlying the existing constitution.[5] That is the key premise posited in Albert’s thesis, especially because the methodology, coherence and deliberative processes involved in design of constitutional reform underlie the rationality and legitimacy of constitutional systems. A constitution cannot be understood, and even less so its reform, without conceiving of them as part of a unitary concept.

Constitutions should be reconciled through structured and transparent reform mechanisms that allow for temperance of the democratic power rooted therein (generally embodied in the legislature as well as in the People through referenda or national constitutional conventions). Maintaining coherence between the basic structure of a constitution and the processes for and nature of its reform presupposes the existence of intergenerational dialogue as well as continuing dialogue between the originating constituent and the holders of the power of constitutional reform (derivative constituent power). That is the essence of constitutional reform which, in every instance, involves a transcendent moment in the lifecycle of a constitutional state,[6] one requiring expenditure of prodigious political and democratic energy. Constitutional dismemberment on the other hand involves abuse of constitutional reform to distort a constitution’s original foundations and rejects a dialectic evolutionary process based on dialogue.[7] In such exercise, the authors of the purported reforms exceeded the limits of their constitutional authority by crossing the border between derivative power of amendment into creative originating constituent power. Thus, such phenomenon introduces new normative and philosophical elements that positively or negatively exceed a constitution’s original design, thus bringing into question the legal “competence” (in the sense of legitimacy and jurisdiction) of the authors of the purported reforms.

II. Sociological Legitimacy

Constitutional evolution presupposes legitimacy, i.e., a level of coherence or correction imposed by a constitution itself and consistent with its foundations. But legitimacy does not arise solely from strictly following constitutional reform procedures. It is derived from maintaining fidelity to the intrinsic meaning of a constitution and from analytical and evaluational participation by the institutional and social actors that promote and oppose its modification. A social imprimatur is derived through politics, the economy, social tensions and as a result of the special interests of wielders of social, economic and political power who endeavor to mould the constitution and its diverse provisions according to the interpretations[8] that best suit their diverse goals.

There are numerous factors with which constitutions interact and that determine whether they persist relatively unchanged over time, whether they become subject to relatively moderate changes, or whether changes prove recurrent and serious. Such factors reveal the extent of sociological legitimacy, the level of participation and relevance of civic life, and the constitution’s integrity, enforceability and diversity of interpretation. Under Albert’s hypothesis, sociological legitimacy exists when the People accept their constitution,[9] defending and maintaining it, either because of tradition or because of their own decision with respect to political practices. However, the People can also change their perspectives as a result of new social dynamics or constitutional moments,[10] or based on impulses to transform the constitution and increase its protection generated by specific sectors, majorities or minorities.

Sociological legitimacy may also explain the reformist culture in some countries (e.g., Mexico and Colombia) and may be considered a functional aspect of the political system more important than its mere correction. This is especially true given that many reforms (in the face of rigidity and rejection of constitutional reform) are considered necessary because of the absence of dynamism within the political branches, or because of the conservatism or excessive tractability of both the political system and the citizenry. In any case, it is difficult to sociologically legitimize constitutional reform without applying norms that limit the authority of the organs charged with effecting constitutional reforms, especially if they fail to respect the constitution’s structure, character and rights.[11] In such cases, the result would be constitutional dismemberment (e.g., short-term, serial constitutions, or amendments far removed and contrary to the constitution then in force).

Similarly, carrying out real constitutional changes that enjoy sociological legitimacy and social approval (or at least tolerance), without changing the text of the constitution, would represent a reform not subjected to the rules established to effect constitutional change, one outside of the parameters of the constitution, and thus, an uncontrolled reform, a mutation.[12] Such constitutional transformation would be uncodified, one in which the political power of the executive or of the legislature or the prestige of the constitutional court was imposed; one where the constitution was rewritten through ordinary procedures not vested with jurisdiction to effect or approve such constitutional reform; one where functional power was usurped through imposition of de facto procedural or substantive modifications unsanctioned by the required constitutional amendment process, and even less so, by required juridical and social control.[13]

This problem illustrates the need for complementary legitimacy: a deliberative policy[14] that encourages evaluation of the power to reform as well as of the proposed modifications; a legitimacy conceded through public opinion, social awareness, respect for the constitution and through restrictions on constitutional degeneration and abuse of power; one that maintains the balance between constitutionalism and reform that, in the end, is no more than respect for the primacy of the constitution and the rule of law. A matter of as much public importance as is a constitution deserves diverse and extensive discussion among equals – discussion which results in conclusions concerning the appropriateness of amendment and which impedes the progress of those who wish to impose their power in order to inappropriately transform the constitution.

III. Constitutional Amendment and Judicial Review: To Whom Does the Constitution Belong?

Constitutional dismemberment involves abusive exercise of the power of constitutional reform. It posits a transcendental transformation (total or partial) of the essential principles, values ​​and commitments of a constitution as a social project and implies abuse or ignorance of the rules of constitutional change and of the social and legal positioning of a constitution, all to the detriment of liberal democracy.[15] But what institutions should hold the responsibility and power to evaluate this phenomenon and determine its constitutional sufficiency?

For Albert, Supreme and Constitutional Courts continue to be positioned as guardians of the constitution. Despite the danger of becoming absolute and imposing their judicial criteria over public or popular concerns, they have shown in diverse comparative experiences (e.g., in India, Colombia and Brazil), that evaluative criteria can be established that allow monitoring the procedural and substantive legitimacy of reforms.[16]

A component in the evaluation of constitutional reforms involves a doctrine that posits that constitutions have a fundamental structure limiting the power to reform them[17] and which, despite not being evident, is identifiable in specific cases which judges are not free to ignore.[18] It is reflected in essential constitutional principles through clauses that limit the competence of derived constituent powers. This prohibits the interpretative creation of new constitutions, their rewriting or the change of their structure or identity, or disproportionate limits on limiting human rights[19] by insisting on the limitations and rationality that constitutions and the rule of law impose on derived constituent power as an instituted power.[20]

Notwithstanding the convenience of judicial control of the power of constitutional reform, it is clear that judicial review must be prudently exercised in a manner that encourages a court to become supreme, not by imposing itself through its ability to inflict its opinion on other public powers and society, but because of its deference to democracy and to promotion and defense of rights to participation, deliberation and due process. Unfortunately, courts tend to attain supremacy as their ability to defend a constitution transforms into the power to rewrite it, which converts the power to review constitutional amendments into extensive and unlimited opportunities to usurp and establish authority over the constitution itself[21] to the detriment of collective constructions of constitutional significance and to the legitimacy of related decisions, thus supporting growing objections and counter-majoritarian difficulties.[22]

Albert’s work is prolific in addressing fundamental problems and inspiring new reflections on the study of constitutional reform. One such reflection focuses on the problem of judicial “rewriting” of constitutions and establishment of new fundamental constitutional principles based on personal judgments. Such problem diminishes sociological legitimacy replacing it with judicial preferences, whether well founded or not, and whether or not they are popularly received or celebrated. The danger of judicial creation of “constituent jurisprudence” through the opinion-judgment process (i.e., an undemocratic jurisprudence that lacks sociological and deliberative legitimacy) and effects changes in constitutional text or engages in authoritarian constitutional interpretation, must be qualified through attainment of legitimacy inspired through discourse, social diversity via citizen participation and through extensive discussion of what it means to reform a constitution.

IV. Comparative Constitutional Law

Albert’s work is an original and insightful contribution to constitutional law, not only because it places the issues of constitutional reform and evaluation of related processes in deliberation, but also because of the methodological approach used to build his arguments. The use of comparative constitutional law allows the author to justify his proposals on a firm empirical basis. In pursuit of such goal he presents significant, recurring historical and contextual data that allows evaluation and comparison of constitutional experiences in different jurisdictions and contexts in order to arrive at projections as to the adequacy of their anticipated evolution. The comparative constitutional approach encompasses the conceptual, the empirical and the evaluative, thus rendering the work global and dialogical as academic actors can see themselves tangibly identified and recognized, providing a common and practical language with which to face the challenges inherent in the use and abuse of constitutional reform.

V. Academic Responsibility

The dialogue proposed by Albert’s book demonstrates outstanding academic responsibility given that the author avoids exclusively dogmatic judgments, something common in our discipline, and builds on comparative, empirical argumentation to support his theory, clearly fostering a novel forum. The objective of this section is to reflect on the responsibility of academia for generation and presentation of high-quality research, for generating discussion and accepting criticism, capacities inherent in academic virtuosity. Albert possesses such virtues; his quest for knowledge and diverse perspectives among diverse forums throughout the world in order to understand others is a model that merits replication. The reflection that “an idea becomes transcendent through open dialogue” is one example.

Conclusion: Constitutional Reform and Democracy

It is essential for designers of constitutions to grasp the essential nature of procedures for constitutional reform and their impact on democratic life and on a constitution’s social relevance. They must understand that a dialectic function is essential: preservation of a constitution’s textual integrity while tolerating and encouraging its evolution in a manner consistent with democratic principles. Resorting to codification is essential, avoiding through conviction and transparency the perspective that it is a messy and confusing task best left for future generations and public authorities to decipher. In this regard, Albert suggests four methodologies for codification of constitutional reforms: appendative, integrative, invisible and disaggregative.[23] He also recommends A Blueprint for the Design of Constitutional Amendments,[24] a fundamental guide for designers of constitutions as well as for those tasked with reformulating or confronting them, permitting them to respond to the challenge through recourse to prior experiences involving constitutional creation and reform.

The debate over constitutional reform is a debate concerning constitutional democracy and the relevance of constitutional design as a guide to reconciling societal dissent while maintaining order and protecting cherished principles and values. But it is also a discussion about the need to both respect and reconsider constitutions through the democratic and constitutional channels they themselves provide. Likewise, it is an indicator of a constitution’s place in society and of the role of the citizenry and of public power in its definition, interpretation and persistence over time. Constitutional design and reform can reveal whether constitutional democracy functions, or whether it has been displaced by presidential power. It can help evaluate the representative character of a legislature and decipher power relations, and it can help define the requirements for judicial guardianship of the constitution. But most of all, it can demonstrate that as citizens we are on the cusp of an opportunity to build better democracies; ones capable of carrying out and respecting the constitution, ones that transform the myth of sovereignty into concrete opportunities for citizen decision-making. This requires the use of interdisciplinary forums and dialogue between social and institutional actors that actually disseminate both power and constitutions among the People and constrain the growing lure of autocracy.

*PhD in law. Professor and researcher (constitutional law), Faculty of Law, Universidad de Caldas, Colombia. Email: [email protected]


[1] Richard Albert, Constitutional Amendments: Making, Breaking, and Changing Constitutions (Oxford University Press 2019).

[2] Generally, the citizenry is called upon to authorize and elect a constitutional convention to study, draft and recommend a new constitution.

[3] David Landau, Derechos sociales y límites a la reforma constitucional: la influencia de la jurisprudencia de la corte constitucional colombiana en el derecho comparado (Universidad Externado 2015).

[4] Carl Schmitt, Constitutional Theory (Duke University Press, 2008).

[5] Richard Albert, Formas y función de la enmienda constitucional (Universidad Externado de Colombia 2017).

[6] Albert (n 1) 268-271.

[7] Richard Albert, ´Constitutional Amendment and Dismemberment´ (2018) YJIL 43, 2-84. 

[8] Albert (n 5) 450-463.

[9] Albert (n 1) 22-24; 72-73

[10] Bruce Ackerman, We the People: Foundations (Harvard University Press 1991).

[11] Albert (n 1) 84-92.

[12] Georg Jellinek, Reforma y mutación de la constitución (Leyer 2018).

[13] Albert (n 1) 126-138.

[14] Jurgen Habermas, Between norms and facts: Contributions to a Discourse Theory of Law and Democracy (The MIT Press 1992) 395.

[15] Albert (n 1) 84-92.

[16] Albert (n 1) 217-222.

[17] Albert (n 1) 19-22; 150-153.

[18] The doctrine of the basic structure of the constitution involves a jurisprudential theory enunciated by the Supreme Court of India which has attained global recognition.

[19] Albert (n 1) 153-156.

[20] The “substitution of the constitution” is a jurisprudential doctrine of the Colombian Constitutional Court that seeks to maintain degrees of competence between original and derivative (reform) constituent powers (derivative constituent power being limited to modification but not replacement of the constitution nor to abolition or excessive limitations on rights).

[21] Albert (n 1) 218-219.

[22] Alexander Bickel, The least dangerous branch: The supreme court at the bar of politics (2nd edn, Yale University Press, 1986)16-17.

[23] Albert (n 1) 229-240.

[24] Albert (n 1) 262-271.

LEAVE A REPLY

Please enter your comment!
Please enter your name here