Constitutional Change

by Giammaria Milani, PhD Candidate, University of Siena. The constitutional revision bill approved by the Italian Senate on August 8, 2014 deals with an issue that has resurfaced cyclically in the Italian political debate: the revision of Part II of the Italian Constitution, dedicated to the form of government and the relationship between the State and the Regions. At least since the early 1980s, several attempts have been made to amend the Constitution, but only once (2001) these have been successful, providing for an extensive revision of the State-Regions relationship.
by Yaniv Roznai. Many constitutions, old and modern, include various substantive limitations on the ability to amend the constitution. According to these limitations certain principles, institutions or rules are ‘unamendable’. In other words, their amendment would be prohibited. Most of the world’s unamendable provisions are non-self-entrenched provisions, i.e. they establish the unamendability of certain constitutional subjects but they are themselves not entrenched. Can non-self-entrenched provisions be amended? As a matter of practice, the answer is positive.
by George Tsebelis & Dominic J. Nardi, Jr. Being part of the acceptance speech delivered by Professor George Tsembelis following the bestowal of an honorary PhD by the University of Crete the following extract draws upon his seminal “veto player” theory to address the relationship between bad constitutional design, amendment rate and poverty. Constitutions are typically amended after extraordinary procedures. These high hurdles of approval and modification guarantee that the constitution at the moment of adoption or modification is located in the “constitutional core” of a country. The “core” of a political system is a technical term referring to the set of points that cannot be upset by some specified majoritarian procedure. So, the “constitutional core” means the document that cannot be replaced by any other under the existing requirements for constitutional revision.
by Thomas Fleiner. On September 28, the Swiss voters and the cantons had to decide on two popular initiatives. They rejected both. The first popular initiative proposed a new constitutional provision, which set up a single, public and unitary health insurance with administrative decentralization. The proponents argued that there is no real competition among the existing different health insurances, that despotic insurance companies waste money with their income of premiums, that the explosion of raising insurance rates must be stopped.
by Michèle Finck In studies of constitutional law in general and constitutional change in particular, the focus often lies on the national level. With the exception of a number of decentralized States, constitutions are national documents, sometimes even playing a unifying role in otherwise diverse countries. Constitutions being national documents, the assumption that constitutional change is a centralized process comes naturally. A number of processes that lead to constitutional change indeed occur on a national scale, such as debates in the context of a national convention or a decision of a national constitutional court.
by Professor John R. Ville, Middle Tennessee State University. I have spent much of my academic life researching the constitutional amending process in the United States. My very first book Rewriting the U.S. Constitution: An Examination of Proposal from Reconstruction to the Present (1991) detailed approximately 40 proposals that individuals had offered from the period of Reconstruction through the publishing of the book in 1991 to either rewrite the U.S. Constitution or introduce a series of major changes to it. In the interim, I had been documenting additional proposals as individual entries for various editions of my Encyclopedia of Constitutional Amendments, Proposed Amendments, and Amending Issues. However, it was only in revisiting the subject for my book Re-Framers: 170 Eccentric, Visionary, and Patriotic Proposals to Rewrite the U.S. Constitution (ABC—CLIO, 2014) that I realized how significantly the number of such proposals had proliferated, particularly in the last two decades.
by John McEldowney The referendum held in Scotland on 18th September 2014 on Scottish independence is a significant event that will prove to be of major constitutional significance for the United Kingdom as well as for the devolved administrations in Wales, Northern Ireland and London for years to come. The NO vote in favour of the 307 year old Union gained a comfortable 55% majority over the YES, in favour of independence of 45%. Electoral turn-out was one of the highest seen in the UK at over 85% of the electorate. In the East Darbartonshire constituency the turnout was 91%. Sixteen year olds were given the vote for the first time.
by George Tsebelis & Dominic J. Nardi, Jr. When the Eurozone crisis struck Europe in 2009, it soon became apparent that Southern European countries would have to drastically restructure government spending and improve their competitiveness in order to reduce excessive levels of public debt. However, some states found themselves unable to do so, and not merely because of lack of political will. In some cases, detailed socioeconomic provisions in their constitutions limited their scope of action. For example, Greece’s 1975 Constitution prohibits the privatization of universities (art. 16(5)). In short, such constitutional provisions risk locking governments into policies that in other countries would not even be considered questions of constitutional law.
by Dr. Alkmene Fotiadou. How often does one find answers to questions that lurked at the back of one’s mind? New scholarship has emerged addressing such questions and, most importantly, articulating more questions that, if answered, have much to offer to the manner in which constitutional change is approached. Prof. Richard Albert has recently posted two new articles on SSRN: “Constitutional Amendment by Constitutional Desuetude” (http://ssrn.com/abstract=2461509) and “The Structure of Constitutional Amendment Rules” (http://ssrn.com/abstract=2461507) that are a must read for anyone who strives to make sense of the complex ways formal and informal constitutional change occurs.
by Professor Christer Karlsson, Uppsala University. Constitutional change has emerged as a prominent topic in the research on constitutional politics and comparative law. In practice, constitutional change can be brought about in two fundamentally different ways: either by changing the wording of the constitutional document, or by changing the meaning of the constitution while leaving the constitutional text itself unaltered. The distinction between explicit and implicit constitutional change is certainly not a new one. Georg Jellinek published his seminal work Verfassungsänderung und Verfassungswandel as early as 1906 and more recent studies have shown that both kinds of constitutional change occur regularly in modern democracies.

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Swiss votations on February 9, 2020

by Prof. Markus Kern / Fabian Schmid, University of Bern

On February 9, 2020, two proposals were up for decision by the Swiss electorate:
– the Popular Initiative claiming “more affordable homes” as well as
– a referendum concerning a ban on discrimination based on sexual orientation in criminal law
The Popular Initiative was rejected by 57.1% of the Swiss population and by all but 4½ of the cantons, whereas the amendment of criminal law was clearly accepted by a majority of 63.1% of the voters. Electoral turnout was at 41.7% resp. 40.9%.

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Illiberal constitutionalism 2 – constraints on public power

by Tímea Drinóczi, Professor, University of Pécs, Faculty of Law, Hungary

Illiberal states emerging in Europe, such as Hungary and Poland, are still constitutional democracies, which are shaped peacefully by populist politicians from a more substantial form of constitutional democracy that prioritizes (liberal) constitutional values through the use of populist style of governance, abusive constitutionalism, and autocratic legalism.[1] In our cases, the minimum requirements of a constitutional democracy, such as the rule of law, human rights, and democracy, have been defectively worded in a constitution, or poorly implemented or enforced.

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