a network of constitutionalists from countries throughout the world
On 15 May 2015, a group of scholars from fourteen countries gathered at Boston College to discuss various practical and theoretical approaches to the constitutional amendment process. The workshop was convened by Richard Albert (Boston College), Xenophon Contiades (Peloponnese), and Alkmene Fotiadou (Center for European Constitutional Law), with the support of Boston College Law School, the IACL’s Research Group on Constitution-Making and Constitutional Change, and the Clough Center for the Study of Constitutional Democracy.
Papers were circulated in advance in order to encourage informed discussion not only from the assigned discussants (one for each of the eight papers) but from all twenty-two participants in the conference room. Each session began with the discussant’s remarks, which would last for about fifteen minutes. The presenter would then respond for ten minutes, and then the floor would be open for other questions and comments for the remaining half-hour.
Following introductory remarks by Vlad Perju (Director of the Clough Center) and Richard Albert, the opening session was given over to a paper by Yaniv Roznai (Haifa/NYU) on “The Spectrum of Constitutional Amendment Powers.” Roznai took as his point of departure the distinction between primary constituent (constitution-making) power and secondary constituent (constitution-amending) power, arguing for a more nuanced understanding of the latter. According to Roznai, there is a spectrum of constitution-amending mechanisms, rising from those that are close to normal legislative power to those that approach the original democratic constitution-making power. He argued that the higher up on the “constitutional escalator” the method of amendment, the less it ought to be limited. Roznai’s discussant Zoran Opklopcic (Carleton University) questioned the accuracy of the escalator analogy, insisting that Roznai was describing something more like a “constitutional roller coaster.” Another point of contention, raised by Mark Tushnet (Harvard), was whether ostensibly more democratic procedures such as referendums are in fact less elite-driven than ordinary procedures such as parliamentary votes.
In the second session Jurgen Goossens (Ghent) discussed “Constitutional Sunrise,” a paper by Sophia Ranchordás (Tilburg). Drawing on a proposed provincial constitution of KwaZulu-Natal in South Africa, Ranchordás argued that constitution-makers should be more open to the use of sunrise clauses, that is, clauses which delay the implementation of desirable-but-sensitive measures until particular social or economic conditions have been met. In his response, Goossens raised questions about the distinction between “sunset” and “sunrise” clauses and about the strength of the South African example. In the light of Ireland’s then-impending vote, Oran Doyle (Trinity College, Dublin) wondered how referendums on same-sex marriage might relate to Ranchordás’ thesis.
After a coffee break we returned to hear Mark Tushnet’s remarks on Doyle’s paper, “The Justification of Constraints on Constitutional Amendment Powers.” Having begun by declaring himself a legal positivist, Doyle entered the debate over unconstitutional constitutional amendments by offering four main distinctions covering the types of constraint that can apply to constitutional amendment powers. He went on to argue that the only basis for constraining amendment powers in a democratic legal system is the preservation of majoritarian government and the political culture that underpins it. One point of controversy in the discussion was whether “majoritarian” was an adequate term for the sort of measures that Doyle was prepared to defend. Another issue was the status of minority rights in a majoritarian system.
In the fourth session of the day the featured paper was “Constituting the Amendment Power: A Framework for Comparative Amendment Law,” by Thomaz Pereira (Yale). Pereira focused on Emmanuel Sieyès’s famous 1789 pamphlet What is the Third Estate? His aim was to put Sieyès’s arguments in their historical context in order to better understand the distinction between constituent power and constituted power. Pereira emphasized the necessary particularity of every understanding of “the people,” in contradistinction to those who would adopt a simply universalistic view of popular sovereignty. The discussant, Luisa Fernanda Garcia Lopez (Del Rosario), offered a number of helpful comments, including a suggestion that Pereira focus more on Sieyès’s contemporary Jean-Jacques Rousseau. Jean-Philippe Derosier (Rouen) sparked an especially colorful exchange on the relation between law and politics, with participants dividing over whether the constituent power is limited by natural law, by its internal structure, or by nothing but the limits of force.
Following lunch, James Fleming (Boston University) discussed Xenophon Contiades and Alkmene Fotiadou’s “Amendment-metrics: The Good, The Bad, and the Frequently Amended Constitution.” While agreeing with much of Contiades and Fotiadou’s attack on purportedly objective, mathematical approaches to comparative constitutional law which in fact serve ideological ends, Fleming playfully took issue with the comparativist tendency to avoid making judgments about objectively “good” and “bad” constitutional orders. In the discussion period, Fotiadou challenged Fleming’s argument that all constitutional amendments are tantamount to attempted corrections of a hitherto-defective constitution; this was another issue that seemed to divide the participants. Contiades and Fotiadou’s paper also prompted conversations about the relation between quantitative and qualitative constitutional studies and about whether the fact that the U.S. Constitution has been so rarely amended is a symptom of health or dysfunction.
To begin the sixth session Nicholas Robinson (Harvard) responded to “Formal Amendment Rules and Constitutional Reform in the Commonwealth Caribbean,” by Derek O’Brien (Oxford Brookes). O’Brien’s paper focused on the remarkable durability of many of the constitutions that have been established in the Commonwealth Caribbean over the last fifty years. He investigated two explanations: first, the rigorous formal amendment rules common in the region, and second, the existence of a change-averse “amendment culture.” In his remarks on O’Brien’s paper, Robinson offered two additional explanations: the international political context and the domestic social context. Other participants were keen to know more about the roots of the Commonwealth Caribbean’s amendment culture and to discuss how the French Caribbean might compare.
Next, Juliano Zaiden Benvindo (Brasilia) commented on “Hannah Arendt in Venezuela: The Supreme Court Battles Hugo Chavez Over the Creation of the 1999 Constitution,” by Joshua Braver (Yale). Braver argued that Arendt’s political thought can shed light on the Venezuelan Court’s initial resistance to Chavez’s Carl Schmitt-inspired revolutionary program. According to Braver, Arendt defends a vision of popular sovereignty that is open to far-going reform but distinct from the absolutely unconstrained, Schmittian ideal of total revolution. In the discussion period, Stephan Jaggi (Peking) put more emphasis on Arendt’s radicalism. Mark Tushnet raised the possibility that Chavez had simply outmaneuvered his political opponents in 1999 and that his constitutional assumptions were not fundamentally different from theirs.
The paper for the final session was “Deconstitutionalization of the EU Treaties? Prospects for and Limits to Remedying a Dysfunctional Mechanism of Constitutional Amendment,” by Andreas Orator (Vienna). Orator argued for an analogy between the situation of Europe under the EU Treaties today and America under the U.S. Constitution in the New Deal period – in other words, the informal consolidation of a constitutional order under overwhelming economic pressure. The discussant, Stephan Jaggi, suggested that a better analogy might be America under the Articles of Confederation, given that Orator’s paper focused on the problem of the unanimity requirement under Article 48 of the Treaties. Other participants, including Thomaz Pereira and Joshua Braver, raised doubts about whether the Treaties are actually equivalent to a constitution.
After some words of reflection on the workshop from Mark Tushnet, the group headed to a Brookline restaurant for dinner, drinks, and more discussion. The papers and the discussants’ responses were of a uniformly high standard; both will be gathered in an edited volume.
This report is by Timothy Brennan, a doctoral candidate in political theory at Boston College and a graduate fellow in the Clough Center for the Study of Constitutional Democracy.