Additional comments on constitutional amendments

Introduction to possible procedures

There are essentially three ways of amending constitutions:

formal amendment
judicial interpretation, and
changing usages and conventions

Both judicial interpretation and to a lesser extent, changing usages and conventions are most important in those countries where the constitution can be changed only with great difficulty. The typical case of amending the constitution by judicial interpretation can be found in the U.S.

The advantage of using formal amendments consists of:

public debate and deliberation
accessibility to the public, respect for the law
popular approval and legitimacy

Disadvantages of informal processes

These three points also underscore the drawbacks of the more informal or indirect processes. If the constitution is changed by judicial interpretation, frequently there is little, if any public debate in advance and often not even in retrospect. However, the lack of debate in advance is the more serious aspect. If there is no debate in advance, how can one be reasonably sure that all the relevant implications have been covered. The short answer is: one is not, and they are not. Similarly, and this applies to both changing usages and judicial interpretation, how can one be sure that the people approve of the changes.

Popular approval and legitimacy

The weight of this argument admittedly turns on whether one believes popular approval is essential or desirable. But its implication goes further. If the fundamental legal document of a country does not have the support of the people, how can respect for the lesser laws be maintained over time. It is claimed that this respect cannot be maintained, and so the legitimacy of the government itself is undermined.

Respect for the law and accessibility

Respect for the law also hinges on whether the law is actually accessible to the public. The easiest method of making law accessible is obviously by writing it down. Conversely, if there is a discrepancy between what the statute says and the way the law is interpreted, this is likely to cause confusion and suspicion among the general public. The law loses its legitimacy, becoming the domain of specialists, lawyers and politicians. Perceptions are here very much reality, if the public feels that the constitution cannot be easily understood, but rather is built on sophistry and cleverness, this will over time contaminate their attitudes towards the rest of the legal system as well.

Most of the time, judicial interpretation and changing usages come about because either the issues cannot be referred to the people for decision or the constitution can only be changed with great difficulty. Thus the informal amending procedures become a substitute for formal amendment.

The way out of this dilemma is by simplifying the formal amendment of the constitution, and by broadening the number of parties making propositions.

Constitutional vigor, legitimacy and the Swiss experience

According to the assumptions above, the vigor and legitimacy of a constitution can be more or less directly related to the pace of constitutional change. The most effective method of preserving written constitutions as a living document is then beyond doubt the institution of a constitutional voters' initiative. In the first 50 years of the Swiss constitution of 1848, only eleven amendments were passed. With the introduction of the initiative in 1891, however, a new era was begun, and in its second half century, the Swiss constitution was amended thirty-seven times. The effects of the initiative are however, mostly indirect. By making the government more accountable, the "quality" of the amendments proposed by the legislature has improved to the point were they are actually accepted.

Australian experience

In Australia, on the contrary, only 8 amendments have been approved since 1900 when the constitution came into existence (30 have been rejected). The mode of approval in Australia and Switzerland is similar. The difference consists in the Australian federal Parliament having the sole power over proposing amendments. Predictably, proposals in Australia have mostly consisted of increasing central government power. Because of lesser accountability the proposals have been self-serving on behalf of the federal government, rather than in the legitimate interests of the people itself. One almost gets the impression that the federal government has been attempting to con the people into approving amendments that was not in their interest. This tradition is extended in the works of the Australian Commission of 1988, which again show a deep distrust of the people and a corresponding attachment to the political elite and a further extension of federal powers.

Revised: 2004-07-02