Suchergebnisse

The American traditions of constitutional amendment raise contrasts and continuities with constitutional amendment in much of the rest of the democratic world. On one hand, the United States Constitution stands apart from many foreign democratic constitutions: it is extraordinarily difficult to amend, it does not entrench any current form of formal unamendability, and it has resisted the global trend toward the doctrine of unconstitutional constitutional amendment. On the other, state constitutions in the United States more closely resemble the world's democratic constitutions: they are freely susceptible to formal amendment, they entrench current forms of formal unamendability, and they recognize the doctrine of unconstitutional constitutional amendment. Constitutional amendment in the United States is therefore peculiar in entrenching both departures from and convergences with constitutional amendment in the larger democratic world. In this article prepared for a symposium on "State Constitutional Change," I explore how American state constitutions differ from the United States Constitution, yet resemble the world's other democratic constitutions in how they structure constitutional amendment. I conclude with thoughts on the organizing logic of constitutional amendment under the United States Constitution.

What makes a constitution difficult to amend? The answer varies across jurisdictions. In the United States, for example, the threshold problem is getting two-thirds of Congress to initiate an amendment—a virtually impossibility in our present day given that Congress has a hard enough time agreeing by a simple majority to pass a simple law. In Australia and Switzerland, it is largely the combination of subnational approval and referendal ratification that complicates matters. In Canada—the subject of this paper—constitutional amendment difficulty derives from similar challenges associated with initiation and ratification but perhaps even more from the use of omnibus amendment bills that combine the good with the bad and give political actors as much a reason to vote in favour as to vote against. In this paper prepared for a symposium on "Rewriting the Canadian Constitution," I suggest that amending the Constitution of Canada could become easier under a new single-subject rule that prohibits omnibus amendment bills but permits multiple single-amendment bills only if voted on separately and differentiated by subject-matter. Imposing a single-subject rule for constitutional amendments in Canada is likely to make the Constitution much more flexible in some important ways but perhaps much more rigid in others.

The policy orientations reflected in the fifth amendment to China's constitution combine some elements of Maoism (an emphasis on ideology, the party, and personality cult); some of the constitutional formality of the Republican era (1912–1949), such as Sun Yat-sen's Wuquan Xianfa (Five Powers Constitution); and some elements of the legal tradition of China's imperial past. These policy orientations were justified by a Maoist philosophical voluntarism: the relative detachment between the "economic base" and the "superstructure" justified the persistence of the Chinese cultural tradition and the notion that political reform does not have to accompany economic reform. On those areas that do not represent an imminent threat to the regime, such as economics and law in general, the fifth amendment is purposely vague, to give the regime flexibility in policymaking.