Constitutional Amendments As A Means to Entrench Public Policies: The Brazil Experience
The Brazilian experience in constitutional amendments illustrates several difficulties posed in conciliating analytical constitutionalism with democracy. The Brazilian constitution in its 30th anniversary, may reach 100 amendments, suggesting even a case of abusive constitutionalism. Most amendments bring to the constitutional text, components of public policies put in place by the incumbent president and parties, sometimes...
How Many Times Has the Korean Constitution Been Amended?: Reflections on Constitutional Identity and the Construction of Time
Promulgated 1987, South Korea‘s current constitution states in its preamble that this is the ninth revision of the first constitution adopted in 1948. Its immediate predecessor constitution of 1980, however, proclaims that the constitution had been changed three times before. What explains this discrepancy? Drafters of the two constitutions evidently had different ideas as to...
Judicial Challenges against the Original Constitution
Scholars are fascinated by courts that challenge constitutional amendments. However, scholars have given little attention to judges questioning the product of the original constituent power. Some argue that constitutions can be unconstitutional, but more work needs to be done to understand the role of judges. I develop a theoretical framework and explore examples from Latin...
Originalism and Constitutional Amendment
This paper identifies a problem that constitutional amendment uniquely poses for originalist theories of constitutional interpretation, namely: how to reconcile changes to a constitution’s text that enact a new set of understandings (‘amenders’ understanding’) against the understandings of the constitution’s framers (‘original understanding’). This problem presents a significant challenge for originalism that has largely been...
The Vanishing Amendment Process: Judicializing Constitutional Change in India
Two processes run side by side: On the one hand, the vanishing of the formal constitutional amendment process, illustrating the diminishing power of the Indian Parliament as an agent as well as a guardian of constitutional change. On the other side, the rise of the Indian Supreme Court, first, as a powerful veto-player, then as...