The Foundations and Traditions of Constitutional Amendment

There is growing interest in constitutional amendment from a comparative perspective. Comparative constitutional amendment is the study of how constitutions change through formal and informal means, including alteration, revision, evolution, interpretation, replacement and revolution. The field invites scholars to draw insights about constitutional change across borders and cultures, to uncover the motivations behind constitutional change, to theorise best practices, and to identify the theoretical underpinnings of constitutional change.This volume is designed to guide the emergence of comparative constitutional amendment as a distinct field of study in public law. Much of the recent scholarship in the field has been written by the scholars assembled in this volume. This book, like the field it hopes to shape, is not comparative alone; it is also doctrinal, historical and theoretical, and therefore offers a multiplicity of perspectives on a subject about which much remains to be written. This book aspires to be the first to address comprehensively the new dimensions of the study of constitutional amendment, and will become a reference point for all scholars working on the subject. The volume covers all of the topics where innovative work is being done, such as the notion of the people, the trend of empirical quantitative approaches to constitutional change, unamendability, sunrise clauses, constitutional referenda, the conventional divide between constituent and constituted powers, among other important subjects. It creates a dialogue that cuts through these innovative conceptualisations and highlights scholarly disagreement and, in so doing, puts ideas to the test. The volume therefore captures the fierce ongoing debates on the relevant topics, it reveals the current trends and contested issues, and it offers a variety of arguments elaborated by prominent experts in the field. It will open the way for further dialogue.

Introduction: The State of the Art in Constitutional Amendment Richard AlbertI. Defining the Field II. The Architecture of Constitutional Amendment Rules III. Amendment as Constitution Part I: The Foundations of Constitutional Amendment1. Amendment Power, Constituent Power, and Popular Sovereignty: Linking Unamendability and Amendment ProceduresYaniv RoznaiI. Introduction II. Unamendability and Constituent Power III. The Constitutionalisation of Primary Constituent Power IV. The Spectrum of Constitutional Amendment Powers V. Conclusion 2. Constitutional Theory and Cognitive Estrangement: Beyond Revolutions, Amendments and Constitutional Moments Zoran OklopcicI. Introduction: The Person of 'The People' and A Three-Fold Cognitive Estrangement II. Beyond 'The People': New Tropes, Old Anxieties III. Three Forms of Estrangement-prevention: Holmes, Pettit, Dworkin IV. Tertium Datur: Mapping Constitutional Change Between the Revolution and the Amendment V. Towards a Different Familiarity: 'The People', The Paradox and The Sacrifice 3. Constraints on Constitutional Amendment PowersOran DoyleI. Introduction II. A Doctrine of Unconstitutional Constitutional Amendments III. Constraint and Powers of Constitutional Change IV. The Types of Constraint on Constitutional Amendment Powers V. Distribution of Power and the Justification of Constraint VI. Justification of Constraints on Constitutional Amendment Powers VII. Conclusion 4. Comment on Doyle's Constraints on Constitutional Amendment Powers Mark Tushnet5. Constituting the Amendment Power: A Framework for Comparative Amendment LawThomaz PereiraI. Introduction II. Conclusion 6. Sieyès: The Spirit of Constitutional Democracy? Luisa Fernanda García LópezI. Introduction II. Towards a Representative Democracy III. Towards a Constitutional Democracy IV. Conclusion 7. Revolutionary Reform in Venezuela: Electoral Rules and Historical Narratives in the Creation of the 1999 Constitution Joshua BraverI. Introduction II. Carl Schmitt's Unfortunate Victory over Hannah Arendt in the Analysis of Popular Constitution-Making III. Hannah Arendt's Revolutionary Reform IV. Hugo Chávez's Radical and Original Constituent Power V. The Turning Point: The Electoral Rules for the Constituent Assembly VI. Radical Breaks and Exclusionary Mandates VII. Conclusion