Study Notes on Constitutional Amendment Procedures and Judicial Review
Chapter 12: Constitutions - Amendment Procedures and Judicial Review
Key Themes and Concepts
Discussion on two critical variables related to the federal-unitary dimension concerning parliamentary majority power.
Explicit restraints on legislative power:
Whether a constitution exists as a 'higher law' that binds parliament.
Contrast between a constitution that can be changed by simple majorities versus one requiring supermajorities.
Judicial Review:
Determines who interprets the constitution in case of conflict with ordinary laws: parliament or an independent body like the courts?
Pure consensus model features rigid constitutions with judicial review, while a pure majoritarian model is characterized by flexible constitutions without judicial review.
Amendment Procedures
Constitutional Rigidity vs. Flexibility:
Rigid Constitutions: Require supermajorities for amendments.
Flexible Constitutions: Can be amended by regular majorities.
Judicial Review Presence:
Degree of judicial review varies; rigid constitutions tend to afford more judicial protections than flexible ones.
Measurements of Constitutional Rigidity and Judicial Review
Introduction of four-point scales for measurement of:
Constitutional Rigidity: Levels vary from completely flexible to very rigid.
Judicial Review: Levels vary from no review to very strong review.
Analysis of correlation:
Rigid constitutions typically feature more active judicial review.
Written vs. Unwritten Constitutions
Prevalence of Written Constitutions:
Nearly all constitutions are written; unwritten constitutions are rare—only three in the studied democracies: the UK, New Zealand, and Israel.
Reasoning Behind Unwritten Constitutions:
UK and New Zealand: Significance of strong consensus on political norms.
Israel: Attempts to adopt a written constitution have failed due to fundamental disagreements on key issues (e.g., religion's role).
Impact on Majority Rule Restrictions:
Importance lies in whether the constitution restricts majority power, rather than its written nature.
Even written constitutions can be flexible and lack judicial review.
Types of Constitutional Amendment Procedures
Four Types of Amendment Procedures Identified: (based on the majority required)
Supermajorities greater than two-thirds: Examples include Argentina, Germany, Australia.
Two-thirds majorities or equivalent: Examples include Austria, Spain.
Between two-thirds and ordinary majorities: Examples include Barbados, Italy.
Ordinary majorities: Examples include Iceland, the UK, Israel.
Adjustments for Plurality Systems:
Supermajorities in plurality systems often represent smaller popular majorities, requiring classification adjustments.
Stability and Changes in Amendment Rules
Stability of Amendment Rules Over Time:
Minor changes observed, such as Sweden adding a referendum requirement.
Mean and Median Indexes of Constitutional Rigidity:
Mean: 2.7; Median: 3.0—indicating most countries fall within the moderate rigidity range.
Mention of specific countries with high rigidity: U.S. (most rigid), Germany, Canada.
Mention of flexibly constituted democracies: UK, New Zealand, etc.
Judicial Review
Judicial Review Defined:
Power vested in courts to test the constitutionality of laws enacted by legislature.
Key Examples of Judicial Review:
Establishment in the U.S. via Marbury v. Madison (1803).
Greek and Trinidad Constitutions grant explicit judicial review powers.
Variability of Judicial Review Presence:
Some countries explicitly deny judicial review (e.g., Netherlands), while others maintain it via parliamentary majority.
Categories of Judicial Review Strength
Four-Fold Classification System:
Strong Judicial Review: U.S., Germany, India, Canada.
Medium-Strength Judicial Review: Countries like Australia, Austria, Costa Rica.
Weak Judicial Review: Countries like Bahamas, France, Japan.
No Judicial Review: Countries like Finland, New Zealand, Sweden.
Judicial Activism:
Not just existence but also the vigor of judicial review is crucial for evaluating the rule of law.
Constitutional Rigidity and Judicial Review Relationship
Correlation Expected:
Strong judicial review typically coexists with rigid constitutions due to their shared purpose of restraining majority overreach.
Figure depicting empirical relationship shows a correlation coefficient of 0.46.
Addendum on Referendums and Consensus Democracy
Referendums in Constitutions:
Frequent utilization as a requirement in written constitutions for amendments.
Can serve either majoritarian or antimajoritarian functions depending on context.
Case Studies:
Examined Swiss and Uruguayan systems reinforce broad coalitions and consensus-building.
Addendum on Supreme and Constitutional Courts
Internal Dynamics of Courts:
Examines the composition, selection methods, and decision-making processes of courts.
Comparative Analysis:
U.S. Supreme Court as a majoritarian court contrasted with more consensual German and Indian courts.
Concluding Observations
Overall trends show that newer democracies tend to include judicial review, and centralized judicial review often surpasses decentralized systems in effectiveness.