The transformation of the juridical

7    The Transformation of The Juridical

Not all constitutional regimes emerge out of democratic constitution-making episodes. In fact, many countries enjoying a reasonable degree of democratic governance frequently operate under constitutions adopted by state officials with little or no participation from ordinary citizens (unwritten constitutions would almost, by definition, fit this description).1 Other countries suffer from a different problem: they operate under constitutions that were imposed from the outside, even if drafted by an elected constituent assembly and ratified in a referendum.2 In the previous chapter, I suggested that such regimes are not necessarily illegitimate from a democratic perspective. Their claim to democratic legitimacy might lie in the fact that, although adopted through a process inconsistent with the basic principles of the democratic ideal (e.g., a constitution adopted by a group of well-intentioned jurists or by an ordinary legislature), they can be re-constituted democratically. Before exploring the question of what specific type of political practices amount to a democratic re-constitution (a question that will be considered in Chapter 8), it is necessary to determine what kind of constitutional changes amount to the creation of a new constitution. That is to say, when can we be said to be witnessing an instance of re-constitution?

In answering that question, this chapter will advance a distinction between the power of constitutional reform and the exercise of constituent power: the latter representing an episode of fundamental constitutional change in which an active citizenry produces novel juridical forms without being subject to any form of positive law; the former only capable of producing certain constitutional changes and not requiring the same level of direct public involvement. This distinction is important since, if it were necessary for every constitutional change to be made through extraordinary and highly participatory procedures, the approach to democratic legitimacy presented in this book would hardly have any practical applications. Constitutions sometimes need to be changed in order to correct a small defect or to replace or alter a provision that has become anachronistic, and there is no reason why those small changes, which sit somewhere between the creation of an ordinary law and the adoption of a new and different constitution, should always be adopted through highly participatory procedures. Put differently, a system in which all constitutional changes have to be adopted through a process that involves intense levels of popular participation is neither practical nor desirable: it would unnecessarily burden both citizens and governments, forcing them to engage in costly and time-consuming procedures that are best reserved for exceptional circumstances.

The solution, however, cannot be found in the opposite extreme; that is, a system in which legislative majorities (like in the United Kingdom) or supermajorities (like the United States) can make any constitutional change whatsoever, and in which the participation of the citizenry is minimal or non-existent. In contrast, this chapter will defend a distinction between ordinary and fundamental changes, each of them requiring a different set of procedures. When a fundamental constitutional change takes place, the constitutional regime is re-constituted, and thus an exercise of the people’s constituent power is required (as mandated by the second condition of democratic legitimacy). The chapter begins by examining the distinction between ordinary and fundamental constitutional change through a discussion of Carl Schmitt’s and John Rawls’ thoughts on the limits of constitutional reform.

It then considers an unorthodox (but increasingly popular) approach that puts Schmitt’s and Rawls’ conceptions into practice: the judicial doctrine of unconstitutional constitutional amendments, which rests in a recognition of the distinction between constituted and constituent power, and suggests that certain changes can only be adopted by the constituent subject. The chapter then moves to explore the ways in which traditional constitutional arrangements deal with the distinction between ordinary and fundamental constitutional change and, indirectly, with the question of constituent power. The problem, it will be seen, is that distinguishing between ordinary and fundamental constitutional change does not mean much from the perspective of democracy at the level of the fundamental laws unless that latter kind of change takes place through procedures consistent with the principles of popular participation and democratic openness.

Schmitt and Rawls on The Limits of Constitutional Reform

Eternity clauses, of course, are a way of distinguishing between fundamental and non-fundamental constitutional change. For example, when Article 60 of Brazil’s Constitution (1988) prohibits amendments that abolish federalism, universal suffrage, the separation of powers and individual rights, or when Article 268 of the Constitution of the Dominican Republic (2010) puts the republican, democratic and representative form of government outside the scope of the amending power, they are in fact identifying what was considered fundamental for those countries’ constitution-makers. This chapter, however, will focus on the theory of implicit limits to the power of constitutional reform and, apart from a few brief comments, it will not consider in detail the role of eternity clauses. In so doing, it seeks to suggest that all constitutions, not just those containing unamendable constitutional clauses, have a fundamental core whose alteration is equivalent to the creation of a new constitution. Such alterations, it will be argued, must take place through an exercise of constituent power (which mandates the use of highly participatory mechanisms). John Rawls and Carl Schmitt provide important insights into the distinction between ordinary and fundamental constitutional change, as well as the relationship between the theory of implicit limits to constitutional reform and constituent power: their views will be considered below.

It is not commonplace to find similarities in the thoughts of authors with such different intellectual and political orientations as Rawls and Schmitt. The former was a leading liberal political philosopher, the latter was directly involved with Nazism after 1933; it would be difficult to find two scholars with more radically opposing trajectories. Rawls and Schmitt, however, reached similar conclusions regarding the limits of constitutional reform. They both believed that a constitutional amendment, even if adopted with the strictest respect to the constitution’s amendment rule, could be unconstitutional if it resulted in the creation of a different juridical order.3 Schmitt, whose conception of constituent power was discussed in Chapter 5, developed a theory of constitutional amendments based on a clear differentiation between the power of constitutional reform and constituent power. In particular, he defended a distinction between the ‘Constitution’ (understood as the conscious decision of the constituent subject in favour of a determinate mode of political existence) and mere ‘constitutional laws’ (understood as individual constitutional clauses enumerated in the document called ‘the Constitution’ but lacking a truly fundamental character).4

In the context of a written constitution, the kind of decisions that make the constitution different from particular constitutional laws can often be identified in the constitutional text, usually in those articles that refer to the basic structure of government, as well as in the preamble (in fact, Schmitt insisted that preambles frequently contain clear statements of the fundamental political decisions of the constituent subject, and should therefore not be discarded as ‘mere proclamations’).5 For instance, in the context of the Weimar Constitution (Schmitt’s specific frame of reference), these decisions included Article 1’s adoption of democracy as a form of government, the rejection of monarchy,6 the adoption of a federal structure of government, of parliamentarism and of the institutions of the “bourgeois Reschstaat with its principles, fundamental rights and the separation of powers”.7 Moreover, Schmitt maintained that an alteration of Article 76 (the amendment procedure) would also amount to the elimination of the constitution: the power to reform the constitution cannot modify the legal provision that regulates its existence and competencies.8 Constitutional laws, in contrast, are simply norms that have been included in the written constitution in order to protect them from ordinary parliamentary majorities.9 To continue with the Weimar Constitution, one could refer to Article 149 as an example of a constitutional law: “Universities will maintain Faculties of Theology.”

Schmitt believed that constitutional laws were the proper object of the ordinary power of constitutional reform, as opposed to the fundamental decisions contained in the Constitution, which could only be touched by the constituent subject. Thus, an alteration or suppression of the above mentioned Article 149 through the ordinary amendment procedure would be perfectly valid, while the substitution of Article 1 for a clause that reads “All power stems from the King” (regardless of how respectful one is of the amendment formula) would signify the annihilation10 of the Constitution and the revolutionary creation of a new one.11 It is not that constitutional laws are unimpor-tant; they were considered important by the constitution-makers and hence they included them in the document titled ‘the Constitution’. However, constitutional laws fall short of having the fundamental character of the decisions pertaining to a people’s political existence. It is thus absurd, according to Schmitt, to attribute equal status to all constitutional provisions, to see the constitution simply as a collection of clauses that are different from ordinary laws by virtue of not being susceptible to amendment through the same processes (in the case of a rigid written constitution).

Interestingly, Schmitt’s conception of the limits of constitutional reform also applies to systems that operate under the doctrine of parliamentary sovereignty. For him, depictions of the Westminster Parliament as “all powerful” were a cause of great confusion, since “a majority decision of the English Parliament would not suffice to make England into a Soviet state”.12 “Only the direct, conscious will of the entire English people, not some parliamentary majority,” he added, “would be able to institute such fundamental changes.”13 Moreover, those constitutions that contain explicit limits to the amending power, like the German, Italian and Norwegian Constitutions, simply make clear the distinction between amendment and revolution, between constitutional reform and constituent power: if something is put outside the scope of the amending power it must be because it is of such a fundamental character that can only be altered by the constituent subject.14 Even in the context of those constitutions that explicitly allow for the ‘total revision’15 of the constitutional text, a change in the basic form of government (e.g., replacing a republic with a monarchy) would go beyond the realm of constitutional reform and could not be considered constitutional.16

The idea is that the power to reform a constitution, a constituted power, does not include the power of producing the kind of profound changes proper to an exercise of constituent power.17 Only the constituent subject is capable of altering the Constitution, and when this happens, we are no longer speaking about constitutional reform but about constitution-making, about the creation of a new and different Constitution.18 In short, the fundamental political decisions “are a matter for the [constituent power] of the German people and are not part of the jurisdiction of the organs authorised to make constitutional changes and revisions”.19 Under this view:

The boundaries of the authority for constitutional amendments result from the properly understood concept of constitutional change. The authority to “amend the constitution”, granted by constitutional legislation, means that constitutional provisions can substitute for individual or multiple ones. They may do so, however, only under the presupposition that the identity and continuity of the constitution in its entirety is preserved. This means the authority for constitutional amendment contains only the grant of authority to undertake changes, additions, extensions, deletions, etc., in constitutional provisions that preserve the constitution itself. It is not the authority to establish a new constitution . . . The offices with jurisdiction over a decision on a constitution amending statute do not thereby become the bearer or subject of the [constituent power]. 20

Rawls reached a similar conclusion in Political Liberalism, where he embraced the “radical idea”21 that not every change introduced into the US Constitution according to Article V (its amending provision) produces a valid amendment. For Rawls, the adoption of a ‘democratic constitution’ should be understood as an expression of the constituent people of governing itself in a certain way and of fixing, once and for all, certain constitutional essentials.22 These constitutional essentials refer to: (a) fundamental principles that specify the general structure of government and the political process (such as the powers of the legislature, executive and the judiciary, and the scope of majority rule); and

(b) basic political rights and liberties that legislative majorities are to respect (such as the right to vote and participate in politics, liberty of conscience, freedom of thought and of association, and the protections of the rule of law).23 Constitutional essentials are to be considered higher law (and as such, an expression of the people’s constituent power) and to be distinguished from the creations “of Congress and of the electorate”.24 Interestingly, Rawls operates under a Lockean conception of ‘constituent power’ (discussed in Chapter 5): “. . . [The] constituent power of the people sets up a framework to regulate ordinary power, and it comes into play only when the existing regime has been dissolved.” 25

Must an amendment negatively affecting these constitutional essentials, asks Rawls, be accepted as valid by the Supreme Court?26 For Rawls, the answer is a clear ‘no’. He maintains that to be valid, a constitutional amendment of this sort must do at least one of the following things: alter basic institutions in order to remove weaknesses that come to light in subsequent constitutional practice (e.g., Twenty-second Amendment of the US Constitution, limiting the President to two terms); or adjust basic constitutional values to changing political and social circumstances or incorporate a broader understanding of those values (e.g., the Nineteenth Amendment, which granted women the right to vote).27

As examples, Rawls considers an amendment to repeal the First Amendment of the US Constitution in order to establish an official religion, and the suppression of the Fourteenth Amendment with its equal protection of the laws. Rawls argues that even if these amendments were enacted according to Article V they should be declared invalid by the judiciary. When confronted with the question of their validity, courts should say that they contradict “the constitutional tradition of the oldest democratic regime in the world”.28 The idea is that the constitution might be amended in order to make its protections more inclusive or to correct weaknesses in the basic institutions, but not to repeal or reverse its essential protections29:

Should that happen, and it is not inconceivable that the exercise of political power might take that turn, that would be a constitutional breakdown, or revolution in the proper sense, and not a valid amendment of the constitution. The successful practice of its ideas and principles over two centuries place restrictions on what can count as an amendment, whatever was true at the beginning.30

Both Schmitt and Rawls defended the view that the power of constitutional reform is not unlimited, and that there can be such a thing as an unconstitutional constitutional amendment. Although Schmitt focuses on those aspects that tend to express the basic form of the polity, and Rawls stresses the recognition of fundamental rights (whose non-amendable character appears to be connected to whether they have been respected for a long period of time), they agree that there are certain aspects of the constitutional regime that cannot be the object of constitutional reform. It is not clear, and this is where these two authors differ, whether the limits created by Rawls’ ‘constitutional tradition’ also apply to the constituent power.

The problem stems from Rawls’ apparent identification of constituent power with the power to amend a constitution through the ordinary amendment procedure (e.g., Article V).31 As Samuel Freeman has noted, for Rawls, “[n]ot everything that the people actually will in the exercise of their constituent power can count as a valid amendment”.32 This, combined with Rawls’ Lockean conception of constituent power as only appearing after government is dissolved makes this aspect of his approach simply puzzling: either constituent power appears every time Article V is used (which would run counter to the distinction between the constituted power of constitutional reform and constituent power)33 or it only appears after government is dissolved (which would mean that constituent power is not exercised through Article V, or that every time Article V is used, government dissolves).34

Schmitt is much clearer in this respect. For him, the power to reform the constitution and the constituent power must never be identified with each other, and the limits that apply to the former do not apply to the latter: the constituent subject can create and destroy constitutions at will. On this point I agree with Schmitt. Placing limits on the subject of constituent power – the sovereign people – amounts to a negation of democracy at the level of the fundamental laws and of the principle of democratic openness (this does not mean, of course, that the constituent subject cannot impose certain limits on itself). Accordingly, the conception of constitutional reform and democratic legitimacy that I present in this book is incompatible with the part of Rawls’ view that appears to hold that the constituent power is subject to substantive limits found in the existing juridical order.

Interestingly, Rawls’ conception has in fact found support in the jurisprudence of the German Federal Constitutional Court. As early as in 1951, the Constitutional Court expressed that there are some principles so fundamental that they even “bind the framer of the constitution”,35 and as recently as 2010 expressed that it “may remain open due to the universal nature of dignity, freedom and equality alone [whether the Basic Law’s eternity clause] even applies to the constituent power”.36 In contrast, following Schmitt, I maintain that these limits only apply to the ordinary institutions of government, not to the constituent power (at least not when understood in light of its connections to the democratic ideal).

The Judicial Doctrine of Constitutional Substitution

Of course, the idea that a constitutional amendment might be unconstitutional precedes both Schmitt and Rawls. Aristotle seems to have suggested it when he asked: “On what principles ought we to say that a State has retained its identity, or conversely, that it has lost its identity and become a different State?”37 The answer provided by Aristotle was that a polis’ identity changes when its constitution is altered as a result of an interruption of its essential commitments.38 A change in the polis’ identity cannot be considered a mere reform, but signifies the birth of a new regime. This idea is also reflected in Article 16 of the Declaration of the Rights of Man and Citizen of 1789, which reads: “Any society in which the guarantee of rights is not secured, or the separation of powers not determined, has no constitution at all.” If the existence of a constitution depends on the protection of certain rights and on the separation of powers, an attempt to suppress those principles (even an attempt that respects the formal amendment formula) cannot be understood as a mere amendment: it would amount to the destruction of the constitution as opposed to its modification.39

Courts in countries such as Germany, Colombia and India have adopted, under different grounds, the idea of unconstitutional constitutional amendments.40 This doctrine is of fundamental importance for the conception of democratic legitimacy presented here: it allows us to differentiate between mere amendments and (re)constitution-making episodes, the latter involving an exercise of constituent power and therefore requiring the deployment of highly participatory procedures of constitutional change. The German Federal Constitutional Court has, several times, asserted its jurisdiction to strike down constitutional amendments (even if abstaining from exercising that power)41 if their content contradicts the central values upon which the constitution rests. While some academics and courts seem to suggest that the origin of that power is to be found in a form of higher law principles pre-existing the constitution,42 discussions about the Court’s ability to invalidate constitutional amendments usually start with the eternity clause contained in Article 79 of the Basic Law (1949). That is to say, according to the court, the Basic Law contains an explicit limit to constitutional reform, established by the constituent power, which demarcates the distinction between ordinary and fundamental constitutional change, and provides a legal justification for the Court’s ability to review the amending power.

The Constitution of India (1950), however, lacks any eternity clauses, yet the country’s Supreme Court was able to assert a jurisdiction similar to that of its German counterpart. In the landmark case of Kesavananda Bharati v Kerala (1973),43 the Supreme Court of India determined that while parliament had the power to amend any constitutional provision, it could not alter the basic structure of the constitution. For the court, the constitution’s preamble and some constitutional clauses attributed a special importance to certain principles (among the principles mentioned in the different concurring opinions were those of constitutional supremacy, the republican form of government, federalism, the welfare state, individual liberty, and secularism).44 The court developed further the doctrine of the basic structure in Minerva Mills v Union of India (1980),45 insisting that the power of constitutional reform conferred on parliament was a limited one and could not be used to repeal or abrogate the existing constitution: “Amend as you may even the solemn document which the founding fathers have committed to your care, for you know best the needs of your generation. But, the Constitution is a precious heritage; therefore you cannot destroy its identity.”46

An interesting – and from the perspective of the conception of democratic legitimacy defended in this book, particularly relevant – question emerges here. Since the Indian Constitution does not contain any means for the exercise of the constituent power of the people, what would happen (and what would the basic principles of democracy require) if, at some point, a large majority of the Indian citizenry wishes to create a new constitution?47 In respect to this question, probably the most instructive case is Opinion C-551/03 of the Colombian Constitutional Court. Unlike the German Basic Law, the Colombian Constitution of 1991 lacks explicit limits to constitutional reform (i.e. eternity or unamendable constitutional clauses) and, unlike the Indian (and the German) Constitution, the Colombian Constitution allows the legislature to convene (by a majority vote subject to popular referendum) a constituent assembly that could be used for the adoption of an entirely new constitution or for the radical transformation of the existing one. 48

As a result, the decision of the Colombian Constitutional Court not only had to surpass the important hurdle of developing a judicial doctrine of implicit limits to the power of constitutional reform, but it also had to recognise that those limits only applied to the constituted powers, not to the constituent subject. Opinion C-551/03 is also extraordinary in an additional way: Article 241 of the Colombian Constitution clearly establishes that the Constitutional Court can only revise proposed amendments for procedural or formal defects in their adoption (‘sólo por vicios de forma o procedimiento’).49 Also interesting is the fact that, in rendering its decision, the Colombian Constitutional Court openly relied on Schmitt’s conception of the constituent power.

This section will examine in some detail the reasoning of the Colombian Constitutional Court in Opinion 551/03. It will also consider the ways in which the doctrine created in that decision (i.e., the doctrine of ‘constitutional substitution’) has subsequently been developed. While my conception of democratic legitimacy does not require a judiciary with the power to strike down ‘unconstitutional’ constitutional amendments (it does not even require giving judges the power to strike down legislation), the arguments presented by the Colombian Constitutional Court throw light on the distinction between ordinary and fundamental constitutional change, as well as the relationship between the latter kind of change and the exercise of constituent power. The constitutional amendments at issue in Opinion C-551/03 were supposed to come into existence after their approval in a referendum, which was originally presented as an opportunity to vote against ‘petty politics and corruption’ (contra la corrupción y la politiquería), and included 19 questions. These questions were about disparate issues, such as the modification of the electoral system, the alteration of the budget process, the regulation of political parties, the public policy on drug-related offences and the prolongation of the period in office of the governors and mayors (including those already in office).50

Not surprisingly, the supporters of the referendum argued that in assessing the constitutionality of the proposed amendments, the court had to limit itself to examine whether the formal requirements established in the amendment rule were met. Those on the other side of the controversy asked the court to examine the substance of the amendments and, among other things, argued that a constitutional amendment could be declared unconstitutional if it contradicted the fundamental principles in which the constitution rested (or if it was inconsistent with Colombia’s international obligations). Thus, an important part of the decision focused on the meaning of the phrase ‘only for procedural or formal defects’ and on whether there existed substantive limits to the power of constitutional reform. The court’s decision, written by Eduardo Montealegre Lynett, began by agreeing with the idea that the content of a proposed constitutional change, unlike the content of an ordinary law, could not be the object of judicial review. Otherwise, the court stated, the power of constitutional reform would be abolished because a constitutional change is, by definition, always inconsistent with the constitutional text that it seeks to transform (and contradict).51 Accordingly, the court’s only role with regard to a proposed constitutional reform was, just as Article 241 states, ensuring that the requirements of the amendment procedure were strictly followed.

However (and here is where the court’s reasoning takes an interesting and decisive twist), in the context of constitutional reform, procedure and substance overlap with each other. The court began its discussion of the relationship between substance and procedure with the following line of argument. According to the court, competence (competencia, understood as the legal power of producing a determinate legal consequence) is a fundamental part of any procedure: it would be legally meaningless to follow each of the requirements of a determinate amendment procedure if one lacks the competence to produce the desired outcome.52

Thus, the court expressed, when Article 241 of the Constitution of 1991 restricts the review power of the court with regard to constitutional amendments to that of identifying procedural or formal defects, it is necessarily conferring on that body the power to examine if the institution promoting the constitutional changes is acting ultra vires