Unconstitutional of Constitutional amendment in Colombia: dilemmas and solutions

The doctrine of the substitution of the Constitution in Colombia refers to the fact that the Constitutional Court can declare a constitutional reform unconstitutional, without the 1991 Constitution containing any axial eternity clauses. This doctrine originates in decision C-551 of 2003, where the Constitutional Court stated that the power of reform cannot go beyond its powers and change, repeal or replace one Constitution with another.

In this first decision, the Court established that the constitutionality parameter to establish when a constitutional reform replaces the Constitution are: (i) the principles and values ​​that the Constitution contains, and (ii) those that arise from the constitutionality block, that refers mostly to the human law treaties that Colombia had signed.

The doctrine of the substitution of the Constitution in Colombia, has an origin and justification similar to the basic doctrine of the Constitution of India, which since the end of the sixties introduced the idea that the reform power cannot change the basic elements of the Constitution. Both the doctrine of the “Basic Structure of the Constitution” of India, and the “Doctrine of substitution” in Colombia, have given rise to a series of problems that derive from the wide degree of interpretation that constitutional courts have in establishing when It is substituting one Constitution for another.

The paper will study the development of the substitution of the constitution doctrine and the problems it has raised, as well as the possible solutions regarding the interpretation and application of this doctrine.

Arendtian Constiuent Power: between law and revolution

Can constitutions make space for revolutions? The concept of constituent power represents the understanding that in constitutional democracies, “the people” are the source of power. In liberal constitutional theory, constituent power is subsumed and exhausted by the act of foundation. Other perspectives recognize the presence of constituent power post establishment and focus on its conflictual character. In this paper, I bring Arendt as an interlocutor in these debates. I argue that Arendt’s writings on power and constitutions suggest that constituent power is generated out of concrete political practices and is not foreclosed by establishment. Further, I look at the gaps and crevices of such an understanding and argue that the resulting perspective is provocative enough for those interested in the value of constitutional orders for revolutionary politics.

Questioning the ‘paradox’ of constitutionalism: ‘the people’ as a legal category and its implications

This paper problematizes the ‘paradox’ of constitutionalism and argues that once ‘the people’ is transformed from a political to a legal category, it ceases to be a self-standing paradox. Although it remains uncontested that it is the constituent power of ‘the people’ that creates formal constitution as constituted power, which in turn constrains the ‘power’ of ‘the people’ leading to the ‘paradox’ of constitutionalism, such a juxtaposition reflects an artificial tension. Given that post-1989 constitutionalism redefined ‘the people’ by rendering it as a ‘legal’-normative category, constituent power is absorbed into a higher order of a transnational-legality, which simultaneously constitutes constituent power and constituted power-that constituent power is supposed to constitute. Thus, re-conceptualisation of ‘the people’ as a legal category and the cyclical dynamic that it induces between constituent and constituted powers bring the paradox and assumptions based on it into question.

We the People: National Identity and Constitutions

This paper examines the relationship between nationalism and constitutions, the role of a constitution in the imagination of the ‘people’ and their national identity, especially in post-colonial contexts.

It argues that the ‘people’ viewed as citizens are a distinct conceptual category embodied and in many ways created by the constitution, a product of ideological nationalist contestations at the constitutive moment, and the ‘people’ at various moments in their political histories have a collective national identity drawn from and in part defined by the constitution.

It argues that looking to the founding narrative and constitutions for a sense of national identity can provide for a thicker account of constitutional patriotism that is compatible with democratic constitutionalism. It allows for an inclusive national belonging that can serve as a counter to ethno-nationalist forces and promote democratic resilience, especially in countries with higher levels of constitutional faith.

Looking Beyond The Constituent Power Theory

This paper presents an alternative to the constituent power theory (CPT), which it terms as a theory of elite democratic bargaining (TEDB). According to TEDB, constitution-making and reform must be based on a bargain between different elite groups in society – controversially not excluding discredited, displaced, or authoritarian elite groups. Using TEDB instead of CPT as a baseline to assess the legitimacy and legality of constitution-making and reform can serve as a better framework for all seasons and aligns with the practical realities of modern constitution-making and reform, which depend predominantly on elite negotiations. Though TEDB can make constitutional changes arduous and moderated, and by its heightened focus on elites, poses tough philosophical questions, this paper will argue how the net benefits of TEDB in building a stable democratic society might warrant its consideration as a viable alternative to CPT.