Xenophon Contiades (ed), Engineering Constitutional Change: A Comparative Perspective on Europe, Canada and the USA

(Routledge: 2012), 488 pages, hardback, $170.00, ISBN: 978-0-415-52976-1

Reviewed by

Konstantinos Margaritis

LLM, PhD candidate
National and Kapodistrian University of Athens
Attorney at Law

© 2013 Konstantinos Margaritis
First published in the Web Journal of Current Legal Issues

The Constitution is a system of legal norms referring to the organizational structure of the State as well as the relations between the State and the Citizen. More than that, it reflects the principles and values within a democratic society. This is exactly the reason why a constitutional change is of such great value and a result of a high legal and political debate. This volume provides a holistic presentation of the reality of constitutional change in 18 countries (the 15 original EU member states, Canada, Switzerland and the USA), by analyzing all major issues affecting modern constitutional theory and practice.

The volume consists of 20 different chapters written by experts in the field of constitutional law representing the 18 legal orders of the States chosen. The essays offer analysis on formal and informal constitutional amendment bringing forth the overall picture of the parallel paths constitutional change follows, in correlation to what the constitution means and how constitutional law works. To capture the patterns of constitutional change, multi-faceted parameters are explored such as the interrelations between form of government, party system, and constitutional amendment, the interplay between constitutional change and the system of constitutionality review, the role of the people, civil society and experts in constitutional change and the influence of international and European law and jurisprudence on constitutional reform and evolution.

Different approaches based on different legal cultures, regarding the concept and function of the Constitution, are demonstrated through the processes of constitutional amendment. Hence the reader will be in a position to clearly understand the similarities and differences in the legal orders of certain States via the scientific debate on issues of modern constitutional law, presented on different perspectives. In order to avoid any confusion, the editor provides with an outline regarding the route of analysis in each State; in that sense the volume obtains an internal cohesion.

As described in the introductory chapter (p. 3), each chapter touches upon the issues of:

  • History and evolution of the amending procedure
  • The amending formula: analysis and interpretation of constitutional provisions regarding constitutional revision
  • The role of the people, civil society and experts in constitutional change
  • Judicial review of constitutional amendments
  • Informal methods of constitutional change
  • Correlations between constitutional change and the system of constitutional review
  • Interrelations between form of government, party system and constitutional amendment
  • The influence of international and European law and jurisprudence on constitutional reform and evolution
  • Criticisms on the amendment procedure and constitutional entrenchment
  • Contemporary debate on constitutional reforms

The comparative approach is the methodology of this volume. Therefore the editor had put questions from the very beginning in order to facilitate the comparative exploration of the constitutional change in the States examined. Those questions are:

  • Does the amending procedure reveal or express a specific understanding of what a constitution is?
  • Is the way in which the constitution organizes political power, allocates authority and regulates fundamental rights interrelated with the amending formula?
  • Do stringent and complex amending procedures cause devaluation of the constitution or lead to its mystification and to what extent is this determined by the features of informal change?
  • Do demanding amending processes nurture the living constitution or are they detrimental to it?
  • Is it possible that unamendable provisions are furnished with the charm of the forbidden, becoming unspeakably desirable, symbolizing reversal?
  • Is it possible for amending formulas to be irrational and what are the criteria for assessing amending formulas?
  • Does the formula achieve the goal it is designed to serve (i.e. stability, consent, consistency, continuity, adaptability etc.)?
  • Can constitutional change be considered a process of cultural development?
  • How does legal culture and constitutional ethos affect the equilibrium between formal and informal change?
  • Do differences between civil law and common law traditions affect modes of constitutional change?
  • How does volatility of the political system relate to constitutional change?
  • Is there a tendency towards less complex amending processes?
  • Can the enhancement of the role of the people counterbalance the role of political elites and judges in constitutional change?
  • Is the role of experts in constitutional amendment related to the dominant constitutional ethos and how does their involvement impact the “level of rigidity”?
  • Are the experts necessarily allies to political elites or can they be allies of the people?
  • How does the relationship between lawmaker and judge influence the route of constitutional change?
  • Who has the final word in the dialogue between constitutional legislator and courts and what are the limits of the judicial review of amendments?
  • How does the formation of a common European legal culture influence constitutional change?
  • How did participation in the European Union and seceding sovereignty affect formal and informal change?
  • What triggers the debate of future amendments?

An important issue in the structure of the chapters is the focus on different aspects of constitutionalism on behalf of the writers, a focus that reflects the diverse background and understanding. This result derives from the inclusion of States representing different legal families where different legal traditions have been established (civil law/common law, presidential/parliamentary, federal/unitary etc.). For example, both Professor Kotzur (Germany) and Professor Stelzer (Austria) focus on the impact of federalism in the constitutional amending process (also the case in the USA) as well as the position of a strong Federal Constitutional Court. An additional touch based on the different federalism background (cultural) is presented by Professor Behrendt (Belgium). Professor Vile’s (USA) center of attention is the historical aspect of constitutional amendment while Professor Blackburn (UK) analyses the changing nature of the British constitutional norms. The interrelation between direct democracy and constitutional changes is demonstrated by Professor Fleiner (Switzerland) and the impact of the absence of constitutional review in the Netherlands is stressed by Professor Voermans.

In the extensive final, comparative, chapter written by the editor Professor Contiades and Dr. Fotiadou, key features of each country’s amendment procedures are epitomized and the mechanisms of constitutional change are explained. The study of the correlation of those mechanisms, their function and their problematic aspects as well as parameters affecting them are used by the two authors in order to distinguish 5 models of constitutional change. The analysis of constitutional “momentum”, the explanation of the role of other players involved in the constitutional amendment (political elite, judges, people and experts), the investigation of the aims of a constitutional change, reveal different routes in constitutional development.

The 5 models proposed by the two authors are as follows: the flexible model, the evolutionary model, the pragmatic model, the model of direct democracy and the model of mistrust. The classification of countries within models, in accordance with the way in which operative amending mechanisms connect, leads to a succinct portrayal of different modes of constitutional change engineering. This classification is based on criteria such as the interrelation between formal and informal change, the impact of factors in the amendment process, the complexity of the process. In this comparative chapter, new tendencies in theory and practice of constitutional change can be observed. Those tendencies are successfully connected to the route of constitutionalism in the States examined and through comparative perspective; they become related to the history of different constitutions.

The result is a clear overview of the constitutional reform procedures and their function within the legal order of the 18 States. Through the deep exploration of major issues in modern constitutionalism, the volume provides a new approach in the field of comparative constitutional law, whilst the expertise of all contributors guarantees the high level of scholarship. At the end, the reader will be familiar with special characteristics of constitutional change in 18 States and because of the structure of the volume, ready to draw conclusions based on comparison. To conclude, this volume will prove to be an invaluable tool for approaching constitutional revision either for theoretical or for practical purposes and will be of particular interest to students and scholars of constitutional, comparative and public law.