Considerations on Constitutional Amendment
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초록
Recent decades have shown that amendment theory is tied quite tightly to foundational constitutional theory. That theory shows that there can be no legal limitations placed upon constitutional amendments, in the sense that a nation’s people can exercise its power to amend, alter, and even replace the nation’s constitution by using any processes that turn out to be effective, even if those processes are inconsistent with the processes laid out in the constitution that is being amended, altered, or replaced (and even if the substance of the amendments is inconsistent with language in the existing constitution purporting to insulate some provisions from amendment). The only limitations on the people’s power to amend or replace the constitution are prudential, not legal. Reasons for amendment include rectifying initially bad design decisions, adapting the constitution to novel circumstances, or to express changes in the nation’s identity. Each of these reasons receives closer examination.
Abstract
Recent decades have shown that amendment theory is tied quite tightly to foundational constitutional theory. That theory shows that there can be no legal limitations placed upon constitutional amendments, in the sense that a nation’s people can exercise its power to amend, alter, and even replace the nation’s constitution by using any processes that turn out to be effective, even if those processes are inconsistent with the processes laid out in the constitution that is being amended, altered, or replaced (and even if the substance of the amendments is inconsistent with language in the existing constitution purporting to insulate some provisions from amendment). The only limitations on the people’s power to amend or replace the constitution are prudential, not legal. Reasons for amendment include rectifying initially bad design decisions, adapting the constitution to novel circumstances, or to express changes in the nation’s identity. Each of these reasons receives closer examination.
참고문헌 (11)
- Albert, Richard, "Constitutional Handcuffs", Ariz. St. L. J, 42, pp.663~ (2010)
- Albert, Richard, "Constitutional Disuse and Desuetude", B.U. L.Rev, 94, pp.1029~ (2014)
- "Basic Law: The Government (1992) (Israel)", ~ (1992)
- "Basic Law: The Government (2001) (Israel)", ~ (2001)
- Colon-Rios, Joel, "Weak Constitutionalism and the Question of Constituent Power" (2012)
- Dixon, Rosalind, "Deciding Not to Decide: Deferral in Constitutional Design", 9 I-CON 636, ~ (2011)
- Krishnaswamy, Sudhir, "Democracy and Constitutionalism in India: A Study of the Basic Structure Doctrine", ~ (2009)
- Roznai, Yaniv, "Unconstitutional Constitutional Amendment: The Limits of Amendment Powers", ~ (2017)
- "Supreme Court Advocates-on-Record v. Union of India", Civil No. 13, Oct. 16, 2015, ~ (2015)
- Tushnet, Mark, "Peasants With Pitchforks, and Toilers With Twitter: Constitutional Revolutions and the Constituent Power", 13 I-CON 639, ~ (2015)
- Tushnet, Mark, "Amendment Theory and Constituent Power" (2018), Comparative Constitutional Theory