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Tushnet, Mark --- "Amendment theory and constituent power" [2018] ELECD 108; in Jacobsohn, Gary; Schor, Miguel (eds), "Comparative Constitutional Theory" (Edward Elgar Publishing, 2018) 317

Book Title: Comparative Constitutional Theory

Editor(s): Jacobsohn, Gary; Schor, Miguel

Publisher: Edward Elgar Publishing

ISBN: 9781784719128

Section: Chapter 16

Section Title: Amendment theory and constituent power

Author(s): Tushnet, Mark

Number of pages: 17

Abstract/Description:

Abstract: Constitutions typically have mechanisms defining how they may be amended (and, sometimes, replaced). Amendments are often desirable to correct newly discovered problems with the original text, or to address new problems of governance. But developing a theory of amendment is surprisingly difficult. After first examining debates over amendment theory in the French Constituent Assembly and the United States Constitutional Convention, this Chapter relates amendment theory to the idea that constitutions are made and remade by a nation’s “constituent power”. Placing some constraints on some kinds of constitutional amendments is consistent with the idea of a constituent power, but in general that idea supports the conclusion that the process of constitutional amendment cannot, in the end, be constrained by the constitution whose amendment is in question. This account provides some insight into the currently popular view that, in some nations, constitutional provisions dealing with the constitution’s “basic structure” cannot be amended at all. The ultimate conclusion is that constitutional provisions dealing with the amendment process are best understood as prudential recommendations from the constitution’s authors to their successors, not as binding legal constraint.