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The Architecture of Constitutional Amendments: History, Law, Politics

The Architecture of Constitutional Amendments: History, Law, Politics

Author: Richard Albert
Publisher: Hart Publishing
ISBN: 9781509959129

Published In: November 2024
Format: Paperback
Jurisdiction: U.K. ? Disclaimer:
Countri(es) stated herein are used as reference only
Hardback Edition ISBN: 9781509959082

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This book blends deep engagement with constitutional theory and close attention to real-life political practice to explore how the choices political actors make in codifying constitutional amendments exert consequences on the operation of the constitution in relation to democracy, the rule of law, and the separation of powers.

It answers the following questions:

Should constitutions append amendments sequentially to the end of the text?
Should they embed amendments directly into the existing text, with notations about what has been modified and how?
Should constitutions 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 this question of central significance to the operation of constitutions: where in the constitution to codify amendments once they are ratified? This innovative book is the first to explain why the placement of constitutional amendments concerns more than mere aesthetics. It involves 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 constitutional design in every region of the world, this book features 18 contributors 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.

Introduction

Richard Albert (University of Texas, USA)

Part I: Uses and Misuses of the Integrative Model

1. Codification of Constitutional Amendments as a Symbol for Transitions: A Case Study from Hungary

Eszter Bodnár (University Eötvös Loránd, Hungary)

2. Opting for the Primacy of Politics: An Inquiry into the History of Switzerland's Choices in Codifying Constitutional Amendments

Caspar Pfrunder (University of St Gallen, Switzerland)

3. The Integrative Model of Constitutional Amendment in Indonesia as a Constitutional Communication

Rosa Ristawati and Radian Salman (both at Airlangga University, Indonesia)

Part II: Seen and Unseen in the Invisible Model

4. The Traces of Formalism: The Spanish Invisible Model of Constitutional Codification

Patricia García Majada (Max Plank Institute for Comparative Public Law and International Law, Germany)

5. Between Accessibility and Oblivion: Strengths and Weaknesses of the 'Invisible' Dutch Constitutional Amendment Model

Reijer Passchier (Leiden University, the Netherlands)

6. Georgia's Model of Constitutional Amendment Codification

Malkhaz Nakashidze (Batumi Shota Rustaveli State University, Georgia)

Part III: Form and Function in Hybrid Models

7. Caught Between: On the Distinctive (or Not) Character of Mexico's Model of Amendment Codification

Jaime Olaiz-González (Universidad Panamericana Law School, Mexico)

8. When Temporary Becomes Indefinite: Legitimacy, Path Dependency and Taiwan's Hybrid Approach to Codifying Constitutional Amendment

Hui-Wen Chen (National Taiwan University, Taiwan)

9. Practically Invisible or Formally Appendative: A Socio-Legal View of Poland's Model of Constitutional Amendment Codification

Emilia Kowalewska (Polish Academy of Sciences' Institute of Political Studies and Graduate School for Social Research, Poland)

10. Codification of Constitutional Amendments in Kenya: A Synthesis of Modified Integrative and Invisible Models

Patriciah Waithera Joseph (High Court of Kenya)

11. Crafting Amendments During Political Upheaval: Amendment Models and Constitutional Stability in Afghanistan

Shamshad Pasarlay (Max Planck Foundation for International Peace and the Rule of Law, Germany)

12. Two Models of Codification, One Constitution: Between Trust and Distrust of Constitutional Interpretations in Albania

Arta Vorpsi (University of Tirana, Albania)

13. The Codification of Constitutional Amendments in Brazil: Beyond the Appendative and Integrative Models

Bruno Santos Cunha (USA)

14. The Odd Case of Paraguay's Model for Incorporating Constitutional Amendments

Diego Moreno Rodríguez-Alcalá (Paraguay)

15. Codifying Secularism in the Bangladesh Constitution

Sharowat Shamin (University of Dhaka, Bangladesh)

16. De-Codifying Amendments in Ethiopia: A Move towards Unwritten Constitution?

Zelalem Eshetu Degifie (Wollo University, Ethiopia)

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