Constitutional Amendments As A Means to Entrench Public Policies: The Brazil Experience

The Brazilian experience in constitutional amendments illustrates several difficulties posed in conciliating analytical constitutionalism with democracy. The Brazilian constitution in its 30th anniversary, may reach 100 amendments, suggesting even a case of abusive constitutionalism. Most amendments bring to the constitutional text, components of public policies put in place by the incumbent president and parties, sometimes creating an interpretation paradox, because they aim different. Powerful illustrations of this are Amendments 20, 29 and 86, instituting a minimum public expenditure in the public health system; and Amendment 95, establishing a general limit in public expenditure for the next 20 years. Entrenching public policies through constitutional amendments can be consider antidemocratic, as they intend to constrain future governments. Other undesirable outcomes are breaches in the internal congruency of the Text, and a predatory competition among those public policies.

Originalism and Constitutional Amendment

This paper identifies a problem that constitutional amendment uniquely poses for originalist theories of constitutional interpretation, namely: how to reconcile changes to a constitution's text that enact a new set of understandings ('amenders' understanding') against the understandings of the constitution's framers ('original understanding'). This problem presents a significant challenge for originalism that has largely been neglected by scholarship to date. The paper addresses this lacuna. First, it will clarify the nature of the problem by identifying the circumstances under which it arises. Second, it will evaluate possible originalist responses. In particular, it will consider whether there is a response available that would make originalism more attractive than other efforts to prescribe limitations on the power of an amendment to override original understanding, such as 'basic structure' and 'unconstitutional constitutional amendment' type doctrines.

How Many Times Has the Korean Constitution Been Amended?: Reflections on Constitutional Identity and the Construction of Time

Promulgated 1987, South Korea’s current constitution states in its preamble that this is the ninth revision of the first constitution adopted in 1948. Its immediate predecessor constitution of 1980, however, proclaims that the constitution had been changed three times before. What explains this discrepancy? Drafters of the two constitutions evidently had different ideas as to what counts as constitutional change. Yet, this raises further questions: Is constitutional amendment different from constitutional revision or replacement? How big a change is required before we say that a new constitution has emerged? At a more theoretical level: What sort of temporal continuity is presumed in the idea of constitutional identity? How is constitution-making related to the political desire to control history? Asking these questions will aid us in assessing the distinctiveness of the Korean story of constitutional revision as well as its general implications for theorizing constitutional change.

The Vanishing Amendment Process: Judicializing Constitutional Change in India

Two processes run side by side: On the one hand, the vanishing of the formal constitutional amendment process, illustrating the diminishing power of the Indian Parliament as an agent as well as a guardian of constitutional change. On the other side, the rise of the Indian Supreme Court, first, as a powerful veto-player, then as a powerful agenda-setting as well as agenda enforcing agent since the early 1990s. While the court is becoming more powerful, Parliament, the institution which had been originally in charge of drafting, debating, and passing constitutional amendment acts, ceases to produce substantial legislative commands that govern constitutional change. This lack of voices not only undermines the deliberative quality of constitutional politics over time, but also leads all actors involved towards a dead end separation of powers game that replaces questions of constitutional change with high stakes constitutional crises about who has the power of the last word. 

Judicial Challenges against the Original Constitution

Scholars are fascinated by courts that challenge constitutional amendments. However, scholars have given little attention to judges questioning the product of the original constituent power. Some argue that constitutions can be unconstitutional, but more work needs to be done to understand the role of judges. I develop a theoretical framework and explore examples from Latin America (i.e., Bolivia, Chile, Colombia, Ecuador, and Perú). The framework distinguishes three types of judicial challenges: the one against a constitutional amendment (Type 1), the one against a provision included in the original constitution (Type 2), and the one against a constitution (Type 3). While Type 1 challenges the constituted power, Type 2 challenges the original constituent power, and Type 3 recognizes the overall legitimacy of that original power while questioning part of the constitution. Type 1 protects the status quo, while Types 2 and 3 could trigger (or help to advance) a constitutional reform.