Engineering constitutional change a comparative perspective on Europe, Canada and the USA edited by Xenophon Contiades

Format:

Book

Contributor:

Kontiadēs, Xenophōn I.

Series:

Routledge Research in Constitutional Law

Routledge research in constitutional law

Language:

English

Subjects (All):

Constitutional amendments--Europe.

Constitutional amendments.

Constitutional amendments--Canada.

Constitutional amendments--United States.

Physical Description:

1 online resource (489 p.)

Edition:

1st ed.

Place of Publication:

London New York Routledge 2013

Language Note:

English

Summary:

This volume provides a holistic presentation of the reality of constitutional change in 18 countries (the 15 old EU member states, Canada, Switzerland and the USA). The essays offer analysis on formal and informal constitutional amendment bringing forth the overall picture of the parallel paths constitutional change follows, in correlation to what the constitution means and how constitutional law works. To capture the patterns of constitutional change, multi-faceted parameters are explored such as the interrelations between form of government, party system, and constitutional amendment; the interplay between constitutional change and the system of constitutionality review; the role of the people, civil society, and experts in constitutional change; and the influence of international and European law and jurisprudence on constitutional reform and evolution. In the extensive final, comparative chapter, key features of each country's amendment procedures are epitomized and the mechanisms of constitutional change are explained on the basis of introducing five distinct models of constitutional change. The concept of constitutional rigidity is re-approached and broken down to a set of factual and institutional rigidities. The classification of countries within models, in accordance with the way in which operative amending mechanisms connect, leads to a succinct portrayal of different modes of constitutional change engineering. This book will prove to be an invaluable tool for approaching constitutional revision either for theoretical or for practical purposes and will be of particular interest to students and scholars of constitutional, comparative and public law.

Contents:

Cover

Engineering Constitutional Change

Series Page

Title Page

Copyright Page

Table of Contents

Notes on Contributors

Acknowledgments

1: Constitutional change engineering

On narratives of constitutional change

Comparative assessment of constitutional change: alternative methods

Modelizing constitutional change

2: Constitutional change in Austria

History and evolution of the constitutional amendment procedure

History of the amendment regulation

Overview on major constitutional amendments

Informal methods of constitutional change

Changes in state practice

Judicial interpretation

Formal constitutional amendment process

Drafting methods and ordinary amending procedure

"Total revision" of the Constitution

Effective substantive limits?

The role of the people

Popular initiatives

Assessment procedure

Referenda

Public consultation

Influence of international and European law

International law

European law

The influence of Austria's political system on constitutional revision

The role of experts in the constitutional revisions

Judicial review of constitutional amendments

Criticism and reform

Functional defi ciency

Structural deficiencies: allocation of powers

Notes

3: The process of constitutional amendment in Belgium

Birth of the amendment procedure: Art. 195 (ex-Art. 131) of the Belgian Constitution

Evolution of the amendment procedure

Selective overview of constitutional amendments

The process of constitutional amendment

Formal Constitution-substantive Constitution

The role of the people.

How does international and European law and jurisprudence affect constitutional revision?

Criticism of the amendment procedure

Modifi cation of the constitutional revision procedure?

4: Constitutional change and constitutional amendment

Setting the table

A high-stakes game

Constitutions and democracy

Making changes

The formal and informal

Of trees and nature

A colonial beginning

Political negotiations

Judicial interpretations

Of charters and constraints

Coming home

The amending formula

Judicial exertions

A question of balance

Conclusion

5: Formal and informal methods of constitutional change in Denmark

Setting the scene: the Danish legal and political context

Most important aspects of the revisions of the Constitution

How do international and European law and jurisprudence affect constitutional revision?

Form of government, political conflict, and constitutional revision

The role of experts in constitutional revision

Criticisms on the amendment procedure and constitutional entrenchment

Contemporary debate on the need for a future constitutional revision

6: Constitutional amendment in Finland

Introduction

Historical background

Milestones of constitutional reforms

The Constitution Act of 1919

Partial reforms

The reform of the domestic system for the protection of constitutional rights

The Constitution of Finland 2000

The Constitutional Reform of 2012

Forms of constitutional change

Procedure for constitutional enactment.

The institution of exceptive enactments

Informal changes of the Constitution

Supervision of constitutional amendments and the role of experts in constitutional revision

Concluding observations on the sources of constitutional amendments and constitutional change

7: Constitutional amendment in France

Methods of constitutional change

The amendment: a sovereign work in a dream world

The delimitation of sovereign power

The limits of sovereign power

The amendment: a political sword in the real world

The relation between political system and constitutional amendment

The twisted amendment

The swayed amendment

8: Constitutional amendments and constitutional changes in Germany

Introduction: a cultural concept of a living constitution

The formal constitutional amendment process

The baseline provisions-Article 79 Basic Law in its constitutional contexts

Boundaries for constitutional revisions

Revision of the Constitution in its entirety (Art. 146 Basic Law)

Examples of formal constitutional amendments that have been made so far

What is meant by "Verfassungswandel"

External factors causing "Verfassungswandel"

Internal factors causing "Verfassungswandel"

Constitutional amendments and constitutional change in the perspective of European and global constitutionalism

Conclusions

9: Constitutional change in Greece

The passage from absolute entrenchment to stringent amending procedures

The temporary simplifi cation of the amendment process and the return to perplexity

Convergences and divergences in the evolution of amendment restraints

Informal methods of constitutional change.

Formal constitutional amendment process

The role of experts

How do international and european law and jurisprudence affect constitutional revision?

10: Constitutional amendment in Ireland

History and evolution of constitutional amendment in Ireland

The European Union

Northern Ireland

Human rights

Voting

Religious and moral matters

Institutions of Government

Judicial "interpretation" of the Constitution

Organic law

Formal constitutional change and judicial review of the process

The influence of politics on constitutional amendment

Initiation

Parliamentary debate

The referendum

The referendum campaign

The influence of European and international law

Criticisms of the constitutional amendment process in Ireland

Conclusion: contemporary debate on further constitutional revision

11: Constitutional revision in Italy

Historical precedents and origin of constitutional rigidity in Italy

A brief history of the constitutional revision under the previous Italian Constitution ("Statuto albertino")

Constitutional revision in the debates of the Constituent Assembly

The formal constitutional amendment procedure

Material limits to constitutional revision

The practice of formal constitutional changes

General considerations

Different historical phases of constitutional revision in Italy

Amending the amendment procedure

12: Constitutional amendment in Luxembourg

History and evolution of the revision procedure

The genesis of the Constitution

Evolution of provisions regarding constitutional revision

A history of constitutional revisions

Summary

Institutional practice and custom

Delegation given to the Grand Duke to modify the Pacte de Famille from 1783

Constitutional change by conclusion of international treaties

Formal revision process

How is the revision process constrained?

Phases of the revising procedure

Do material limitations exist?

Constitution drafting methods

Is the revision procedure assessed by the electorate?

To what extent does civil society participate?

How does International and European Law affect constitutional revision?

Introduction of Art. 49-bis and revision of Art. 37 in 1956

Article 9 and Art. 107 paras 2 and 4: Right to active and passive voting in municipal and European elections granted to all EU citizens

Article 95-bis: Judgment of the ECtHR in Procola

Former Art. 11 para 2 (now Art. 10-bis para 2): Access to all posts in the public sector for EU citizens

Article 18: Abolition of the death penalty

Article 23 para 1: Primary education free of charge for every child

Article 118: Approval of the Statute of the International Criminal Court (ICC)

Article 114: Constitutional revision procedure

Judicial review of constitutional revisions

Criticisms

Trivialization of constitutional revisions

Severity of conditions for a constitutional referendum.

Revisions of the Constitution as a reaction to judgments of the Constitutional Court.

Notes:

Description based upon print version of record.

Includes bibliographical references and index.

Description based on metadata supplied by the publisher and other sources.

ISBN:

1-283-91954-0

0-203-09499-9

1-136-21078-4

9780203094990

OCLC:

823389978