Abstract
This chapter explores why constitutions are changed. The chapter begins with an overview of why constitutional design and redesign are important questions. The second section provides a background to the study of constitutional change which has tended to be embedded within legal scholarship rather than political science. The third section reviews competing theories of constitutional change, noting the general absence of political parties from these theories and the lack of success in explaining observed patterns of constitutional amendments. The next section suggests the need to “bring the party in” and suggests how incorporating the preferences of parties and the shape of the party system can advance our understanding of constitutional change. A number of empirical cases suggest that parties and party systems shape constitutional change are discussed briefly. The chapter concludes with suggestions for how further progress can be made in integrating research on parties and party systems with research on constitutional change.
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- 1.
Few countries establish absolute barriers to amending any of the articles in their constitutions. Outlier examples include Germany and the United States. In Germany, the federal system is protected against changes. Similarly, amendments of the basic principles of Articles 1 (on human dignity) and 20 (on basic principles of state order and the right to resist) are inadmissible (see Article 79). Article 5 of the US Constitution says, “No state, without its Consent, shall be deprived of its equal Suffrage in the Senate”. A recent example to the same effect appears in the constitutional framework of Bosnia-Herzegovina, based on the Dayton agreement. Paragraph 2 of Article 10 states: “No amendment to this Constitution may eliminate or diminish any of the rights and freedoms referred to in Article II of this Constitution or alter the present paragraph”.
- 2.
Judicial activism, defined here as “a willingness to find unconstitutional the laws and actions of duly elected officials” (Hodder-William 1992: 17), may not necessarily have a constitutional basis. For example, the executive may be held judicially accountable for breaching legislation rather than the constitution.
- 3.
The rank-order coefficient Spearman’s rho is however positive and significant at conventional levels (rho = 0.580; sig. 0.012). This correlation is produced by the two countries with no change at all on both series (Denmark and Japan), and it disappears (and Pearson’s r turns negative) if the two countries are removed.
- 4.
The previous institutional arrangement—not used since 1927—was seen as obsolete. The voting results indicate that this status quo was located outside the unanimity core of the major parliamentary players and that the new proposal belonged to the unanimity winset.
- 5.
Article 15 says, “Any person who holds a seat in the Council of State has the duty to submit his application to resign once the Storting has passed a vote of no confidence against that Member of the Council of State or against the Council of State as a whole.” This had been a reality for more than 100 years.
- 6.
Formally, amendments to New Zealand’s constitution occur in the same way as ordinary legislation. Thus, the Constitution Act 1986, as with other standard legislation, can be amended by a simple parliamentary majority. In practice, any major changes in a constitutional nature are typically the subject of a binding referendum, but these have been rare. However, a few entrenched provisions in the Electoral Act 1993 require a super majority for amendment. The entrenching provision is not itself entrenched and thus (in theory at least) could be amended or removed by a simple majority.
- 7.
Lorenz (2005: 353, Table 4) reports adjusted R2 ranging from 0.77 to 0.92 in regression models with rigidity measures and length of constitution as independent variable. For example, Lutz’ index of difficulty and length explains 95 % of the variance in the dependent variable. It is questionable whether these high coefficients are reliable.
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This research has been supported by the Norwegian Research Council (FRISAM Project No. 222442).
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Appendix I: Formal Amendment Rules in Selected Countries
Appendix I: Formal Amendment Rules in Selected Countries
Country | Legislative decision(s) | Referendum and/or ratification | Comments |
|---|---|---|---|
Australia (federation) | - Lower house 1/2 - Upper house 1/2 | Majority (1/2+) | Constitutional amendment must secure the support of a majority of the whole electorate and majorities in a majority of states (i.e. in 4 of 6 states). |
Austria (federation) | - Lower house 2/3 | (Referendum threat) | Referendum if claimed by more than 1/3 of lower or upper house Separate procedure for “total revision” (referendum required) |
Belgium (federation) | - Pre-election declaration of revision (by federal legislative power) | ||
- Post-election lower 2/3 | |||
- Post-election upper 2/3 | |||
Denmark | - Pre-election 1/2 | Majority (1/2+) | Referendum majority more than 40 % of electorate |
- Post-election 1/2 | |||
Estonia | - First vote 1/2 | (Selected articles only) | Referendum required to amend important articles (e.g. general provisions). 3/5 in parliament to call referendum |
- Second vote 3/5 | |||
Urgency: single decision with 4/5 majority | |||
Finland | - Pre-election 1/2 | Urgency: single decision with 5/6 majority | |
- Post-election 2/3 | |||
France | Either (I) | Majority (if Procedure I) | No referendum if president decides to submit proposed amendment to parliament convened in congress (i.e. Procedure II) |
- Lower house 1/2 | |||
- Upper house 1/2 or (II) | |||
The republican form of government is not subject to amendment. | |||
- Parliament 3/5 | |||
Germany (federation) | - Lower house 2/3 | Some articles of the constitution cannot be amended (e.g. division of federation into states) | |
- Upper house 2/3 | |||
Greece | - Pre-election 3/5 twice | The pre-election decisions should be separated by at least one month. Reversed majority requirements possible (i.e. absolute majorities before election and 3/5 majority after election) | |
- Post-election 1/2 | |||
Some articles of the constitution cannot be amended (e.g. the basic form of government) | |||
Iceland | - Pre-election 1/2 | (Selected articles only) | Referendum required to change the status of the church |
- Post-election 1/2 | |||
- Consent by president | |||
Ireland | - Lower house 1/2 | Majority 1/2 | |
- Upper house 1/2 | |||
Italy | Either (I) | (Referendum threat if Procedure I) | Referendum according to Procedure I (absolute majority—but less than two-thirds—in second vote in the chambers) if claimed by (1) 1/5 of members of either chamber (2) 500.000 electors or (3) at least five regional councils |
- Lower house 1/2 twice | |||
- Upper house 1/2 twice or (II) | |||
- Lower house 1/2 and 2/3 | |||
- Upper house 1/2 and 2/3 | |||
Japan | - Lower house 2/3 | Majority | Referendum requirement: “the affirmative vote of a majority of all votes cast thereon” |
- Upper house 2/3 | |||
Latvia | - 2/3 majority in three readings | (Selected articles only) | Referendum required to amend important articles (e.g. general provisions) |
Lithuania | - First vote 2/3 | (Selected articles only) | Referendum required to amend important articles (in which ¾ of electorate support the amendment) |
- Second vote 2/3 | |||
Delay of at least 3 months between decisions in parliament | |||
Luxembourg | - Pre-election 1/2 | ||
- Post-election 2/3 | |||
Netherlands | - Pre-election lower 1/2 | Ratification by king required | |
- Pre-election upper 1/2 | |||
- Post-election lower 2/3 | |||
- Post-election upper 2/3 | |||
New Zealand | - Majority vote (1/2) | (Majority) | Confirmation in referendum expected or customary if the amendment is considered sufficiently important |
Norway | - Pre-election proposal by MPs (no decision) | Delay, but single decision in parliament | |
- Post-election 2/3 (closed rule) | |||
Portugal | - Parliament 2/3 | Some limits on revision of substance of the constitution specified in Article 288. | |
Spain | Either (I) | (Referendum threat) | Referendum if claimed by more than 1/10 of the members of either chamber |
- Lower house 3/5 | |||
- Upper house 3/5 or (II) | Separate procedure for total revision (i.e. 2/3 majority in each chamber, dissolution, 2/3 majority in both chambers, and ratification by referendum) | ||
- Lower house 2/3 | |||
- Upper house 1/2 | |||
Absolute majority required in the Senate according to Procedure II | |||
Sweden | - Pre-election 1/2 | (Referendum threat) | Referendum if claimed by more than 1/3 of MPs |
- Post-election 1/2 | |||
Switzerland (federation) | - Lower house 1/2 | Majority (1/2+) | In referendum, majority of votes nationwide as well as majority support in a majority of Cantons |
- Upper house 1/2 | |||
United States (federation) | Either (I) | Ratification by ¾ of the states | Procedure II has never been used. |
- Lower house 2/3 | |||
- Upper house 2/3 or (II) | |||
- Constitutional convention (called by 2/3 of the states) |
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Martin, S., Rasch, B.E. (2013). Political Parties and Constitutional Change. In: Müller, W., Narud, H. (eds) Party Governance and Party Democracy. Springer, New York, NY. https://doi.org/10.1007/978-1-4614-6588-1_11
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