The architecture of constitutional amendments : history, law, politics

This innovative book blends constitutional theory with real-life political practice to explore the impact of codifying constitutional amendments on the operation of the constitution in relation to democracy, the rule of law and the separation of powers. It draws from comparative, historical, political and theoretical perspectives to answer questions all constitutional designers should ask themselves: The book examines the three major models of amendment codification – the appendative, the integrative, and the invisible models – and also shows how some jurisdictions have innovated alternative forms of amendment codification that combine elements of more than one model in a unique hybridisation driven by history, law and politics. Constitutional designers rarely consider where in the constitution to codify amendments once they are ratified. Yet this choice is pivotal to the operation of any constitution. This groundbreaking book shows why the placement of constitutional amendments goes well beyond mere aesthetics. It influences how and whether a people remembers its past, how the constitutional text will be interpreted and by whom, and whether the constitution will be easily accessible to the governed. A global tour of the high stakes of constitution-making, this book features 18 diverse and outstanding scholars from around the world – across Africa, America, Asia and Oceania, and Europe – raising new questions, opening our eyes to new streams of research and uncovering new possibilities for constitutional design. Acknowledgements Contents Contributors Introduction: How Should Constitutions Codify Amendments? I. Writing Rights and Wrongs II. The Appendative Model: A Memorial to the Past III. The Integrative Model: A Lawyerly Record IV. The Invisible Model: An Illusion of Perfection V. The Disaggregative Model: Separate Sites of Constitutional Significance VI. Hybrid Models in the World VII. An Agenda for Constitutional Research 1. The Traces of Formalism: The Invisible Spanish Model of Constitutional Codification I. Introduction II. An Examination of the Spanish Constitution III. Formalism and Invisibility: Two Sides of the Same Coin IV. Conclusion 2. The Presentist Portuguese Constitution I. Introduction II. Codifying Constitution Amendments in Portugal III. Conclusions: Understanding Amendment Invisibility in Portugal 3. Caught Between: On the Distinctive Character of Mexico’s Model of Amendment Codification I. Introduction II. Tracking the Past III. Framing the Mechanism IV. Implementing the Model(s) V. A Disharmonic Constitution 4. The Incorporation of Amendments in Paraguayan Constitutionalism I. Introduction: Reframing Amendment Discourse in Paraguay II. A Short History of Paraguayan Constitutions and Constitutional Amendments III. Making Sense of the Disaggregative Model in the Paraguayan Context IV. The Errata of the 1992 Constitution: An Experiment with the Integrative Model? V. Amendment Rules in the 1992 Constitution: A Critical Assessment VI. Taking Amendment (and Amendment Codification) Rules Seriously VII. Conclusion 5. The Codification of Constitutional Amendments in Brazil: Beyond the Appendative and Integrative Models I. Introduction II. The Theoretical Foundations of Codification of Constitutional Amendments III. The Constitutions of Brazil and their Amendment Procedures: 1824–1969 IV. The Constitution of 1988: Appendix and Integration V. Conclusion: The Constitution of 1988 and its Mandatory Disaggregation and Invisibility 6. The Form of Constitutional Amendments in Japan I. Introduction II. The Form of Ordinary Statutory Amendments III. The Form of the Transition from the Meiji Constitution to the 1946 Constitution IV. The Form of Amendments to the 1946 Constitution V. Conclusion 7. When the Temporary Becomes Indefinite: Legitimacy, Path Dependency and Taiwan’s Hybrid Approach to Constitutional Amendment Codification I. Introduction II. Tracing the Root of the Hybrid Appendative-Invisible Model: The Temporary Provisions of 1948 III. The Additional Articles, Institutional Continuity and Democratic Legitimacy IV. Final Thoughts: What if the Temporary Becomes Indefinite? 8. Amendment Politics in South Korea: Invisible Constitutional Replacements in 1960 and 1962 I. Introduction: On Amendment Politics II. Modes and Codification of Formal Constitutional Change III. Revolution and the Third Constitutional Amendment in 1960 IV. The Coup and the Fifth Constitutional Amendment in 1962 V. Conclusion 9. Crafting Amendments during Political Upheaval: Amendment Models and Constitutional Stability in Afghanistan I. Introduction II. The Invisible Model: The 1923 Constitution III. The Appendative Model: The 1931 Constitution IV. The Meeting of the Invisible and Integrative Models: The 1987 Constitution V. Conclusion 10. Codifying Secularism in the Bangladesh Constitution I. Introduction II. The Constitution and its Amendments: Situating the Codification Model III. Secularism as the Fundamental Principle: Background and the Controversies IV. Judicial Review of Constitutional Amendments and the Impacts of the Resulting Codification V. Concluding Remarks 11. The Integrative Model of Constitutional Amendments in Indonesia as Constitutional Communication I. Introduction II. The Model for Amendment III. From the Appendative Model to the Integrative Model IV. Conclusion 12. The Amalgamation of Amendment Codification Models in Ethiopia: A Move Towards an Unwritten Constitution I. Introduction II. Amendment Codification Models of the Current Federal and State Constitutions III. The Ethiopian Choice of Codification Models: Probing the Records IV. The Implications of the Ethiopian Codification Models V. Conclusion 13. Amendment Codification in Switzerland: Codifying an Evolving Culture of Constitutional Pragmatism I. Introduction II. Codification Models and Temporalities of Political Legitimacy III. The Place of the Swiss Constitution IV. From Treaty to Constitutional Federalism: The Foundation of a New Power V. Legitimating the Constitution: A Hidden Revolution? 14. Between Accessibility and Oblivion: Strengths and Weaknesses of the ‘Invisible’ Dutch Constitutional Amendment Model I. Introduction II. The ‘Invisible’ Dutch Amendment Model III. Consequences: Strengths and Weaknesses IV. Making Invisible Amendments Visible V. Conclusion 15. Codification of Constitutional Amendments as a Symbol for Transitions: A Case Study from Hungary I. Introduction II. New But Old: The 1949 Constitution and its Amendments III. Old But New: The 1989–90 Constitution and its Amendments (Albeit Flawed) IV. New But Old But New: The 2011 Constitution, its Amendments and an Attempted Model Change V. Concluding Remarks 16. One Constitution, Two Models of Codification: Between Trust and Distrust Towards Constitutional Interpretations in Albania I. Introduction II. Constitutional Amendment in Albania III. The Incorporation of Amendments IV. The Political and Legal Consequences of the Albanian Model V. Conclusion 17. Georgia's Model of Constitutional Amendment Codification I. Introduction II. The Constitution of Georgia: A Single Codified Constitutional Document? III. The History of Constitutional Amendment Codification in Georgia IV. The Constitutional Amendments Codification in the Current Constitution V. Popular Accessibility of the Text of the Constitutional Amendments VI. Judicial Interpretation of Constitutional Amendments VII. The Harmonisation and Incorporation of the Constitutional Amendments VIII. Conclusions Index "This innovative book blends constitutional theory with real-life political practice to explore the impact of codifying constitutional amendments on the operation of the constitution in relation to democracy, the rule of law, and the separation of powers. It draws from comparative, historical, political and theoretical perspectives to answer questions all constitutional designers should ask themselves: - Should the constitution append amendments sequentially to the end of the text? - Should it embed amendments directly into the existing text, with notations about what has been modified and how? - Should it instead insert amendments into the text without indicating at all that any alteration has occurred? The book examines the 3 major models of amendment codification - the appendative, the integrative, and the invisible models - and also shows how some jurisdictions have innovated alternative forms of amendment codification that combine elements of more than 1 model in a unique hybridisation driven by history, law, and politics. Constitutional designers rarely consider where in the constitution to codify amendments once they are ratified. Yet this choice is pivotal to the operation of any constitution. This groundbreaking book shows why the placement of constitutional amendments goes well beyond mere aesthetics. It influences how and whether a people remembers its past, how the constitutional text will be interpreted and by whom, and whether the constitution will be easily accessible to the governed. A global tour of the high stakes of constitution-making, this book features 18 diverse and outstanding scholars from around the world - across Africa, America, Asia and Oceania, and Europe - raising new questions, opening our eyes to new streams of research, and uncovering new possibilities for constitutional design"-- Provided by publisher