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Yaniv Roznai - One of the best experts on this subject based on the ideXlab platform.
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from an unConstitutional Constitutional Amendment to an unConstitutional constitution lessons from honduras
Global Constitutionalism, 2019Co-Authors: David Landau, Rosalind Dixon, Yaniv RoznaiAbstract:The unConstitutional Constitutional Amendment doctrine has emerged as a highly successful, albeit still controversial, export in comparative Constitutional law. The doctrine has often been defended as protecting a delegation from the people to the political institutions that they created. Other work has noted the doctrine’s potential utility in guarding against abusive Constitutionalism. In this article, we consider how these justifications fare when expanded to encompass claims against the original constitution itself, rather than a later Amendment to the text. That is, beyond the unConstitutional Constitutional Amendment doctrine, can or should there be a doctrine of an unConstitutional constitution? Our question is spurred by a puzzling 2015 case from Honduras where the Supreme Court held an unamendable one-term limit on presidential terms, as well as protective provisions punishing attempts to alter that limit, to be unConstitutional. What is particularly striking about the case is that these provisions were not later Amendments to the constitution, but rather parts of the original 1982 constitution itself. Thus, this article examines the possibility of ‘an unConstitutional constitution’, what we predict to be the next trend in global Constitutionalism.
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term limits and the unConstitutional Constitutional Amendment doctrine lessons from latin america
Social Science Research Network, 2018Co-Authors: David Landau, Yaniv Roznai, Rosalind DixonAbstract:This chapter examines the interaction between term limit provisions and the unConstitutional Constitutional Amendment doctrine in Latin America. It illustrates the varied approaches of courts concerning the validity of attempts to amend presidential term-limits. In Colombia, the Constitutional Court intervened to prevent what it saw as an undue easing of term limits (after permitting one round of easing); In Venezuela, Ecuador, and Bolivia, courts generally allowed attempts to ease or eliminate term limit using less demanding rather than more demanding procedural routes; and in Costa Rica, Nicaragua, Honduras, and Bolivia, judiciaries deployed the unConstitutional Constitutional Amendment doctrine in order to eliminate rather than to protect term limits. After mapping the major Constitutional decisions issued on this issue in Latin America in recent years, the authors argue that transnational anchoring holds some promise in clarifying the proper scope of control of Constitutional change regarding term limits.
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from an unConstitutional Constitutional Amendment to an unConstitutional constitution lessons from honduras
Social Science Research Network, 2018Co-Authors: David Landau, Rosalind Dixon, Yaniv RoznaiAbstract:The unConstitutional Constitutional Amendment doctrine has emerged as a highly successful, albeit still controversial, export in comparative Constitutional law. The doctrine has often been defended as protecting a delegation from the people to the political institutions that they created. Other work has noted the doctrine’s potential utility in guarding against abusive Constitutionalism. In this piece, we consider how these justifications fare when expanded to encompass claims against the original constitution itself, rather than a later Amendment to the text. That is, beyond the unConstitutional Constitutional Amendment doctrine, can or should there be a doctrine of an unConstitutional constitution? Our question is spurred by a puzzling 2015 case from Honduras where the Supreme Court held an unamendable one-term limit on presidential terms, as well as protective provisions punishing attempts to alter that limit, to be unConstitutional. What is particularly striking about the case is that these provisions were not later Amendments to the constitution, but rather parts of the original 1982 constitution itself. Thus, this article examines the possibility of ‘an unConstitutional constitution’.
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conventionality control and Amendment 95 2016 a brazilian case of unConstitutional Constitutional Amendment
Revista de Investigações Constitucionais, 2018Co-Authors: Yaniv Roznai, Leticia Regina Camargo KreuzAbstract:This article presents reflections on Brazilian Constitutional Amendment 95/2016, which established the New Tax Regime and consequently the ceiling of public spending in Brazil for a period of twenty years, which has serious consequences for Brazilian public services. The hypothesis defended in the study is that Amendment 95/2016 is an unConstitutional Constitutional Amendment, since it violates the essence of the Social State present in the original text of the 1988 Constitution and has direct influences on the guarantee of fundamental rights, which constitute stone clauses (clausulas petreas). Thus, the study starts with the technical analysis of the Amendment. Next, the concept and content of the stone clauses in the Brazilian constitution are analyzed to propose the possibility of conventionality control as an alternative, focusing on the Intermerican Convention on Human Rights, UN Convention on the Rights of Persons with Disabilities and International Covenant on Economic, Social and Cultural Rights. It is concluded that conventionality control of the Amendment is imperative. The methodology used is the bibliographic analysis on the themes, as well as the projection of data on the economic and social effects of Amendment 95/2016.
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conventionality control and Amendment 95 2016 a brazilian case of unConstitutional Constitutional Amendment
Social Science Research Network, 2018Co-Authors: Yaniv Roznai, Leticia Regina Camargo KreuzAbstract:This article focuses on Constitutional Amendment 95 of December 2016 to the Brazilian Constitution, which imposes a ceiling on public expenditures and prevents the expansion of investments in sectors such as health and education for twenty years. We analyze whether Amendment 95 is compatible with the "stone clauses" (clausulas petreas) of the constitution, and as an alternative argument, claim that it can be the object of conventionality control on the basis of international human rights conventions to which Brazil is a signatory.
Rosalind Dixon - One of the best experts on this subject based on the ideXlab platform.
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from an unConstitutional Constitutional Amendment to an unConstitutional constitution lessons from honduras
Global Constitutionalism, 2019Co-Authors: David Landau, Rosalind Dixon, Yaniv RoznaiAbstract:The unConstitutional Constitutional Amendment doctrine has emerged as a highly successful, albeit still controversial, export in comparative Constitutional law. The doctrine has often been defended as protecting a delegation from the people to the political institutions that they created. Other work has noted the doctrine’s potential utility in guarding against abusive Constitutionalism. In this article, we consider how these justifications fare when expanded to encompass claims against the original constitution itself, rather than a later Amendment to the text. That is, beyond the unConstitutional Constitutional Amendment doctrine, can or should there be a doctrine of an unConstitutional constitution? Our question is spurred by a puzzling 2015 case from Honduras where the Supreme Court held an unamendable one-term limit on presidential terms, as well as protective provisions punishing attempts to alter that limit, to be unConstitutional. What is particularly striking about the case is that these provisions were not later Amendments to the constitution, but rather parts of the original 1982 constitution itself. Thus, this article examines the possibility of ‘an unConstitutional constitution’, what we predict to be the next trend in global Constitutionalism.
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term limits and the unConstitutional Constitutional Amendment doctrine lessons from latin america
Social Science Research Network, 2018Co-Authors: David Landau, Yaniv Roznai, Rosalind DixonAbstract:This chapter examines the interaction between term limit provisions and the unConstitutional Constitutional Amendment doctrine in Latin America. It illustrates the varied approaches of courts concerning the validity of attempts to amend presidential term-limits. In Colombia, the Constitutional Court intervened to prevent what it saw as an undue easing of term limits (after permitting one round of easing); In Venezuela, Ecuador, and Bolivia, courts generally allowed attempts to ease or eliminate term limit using less demanding rather than more demanding procedural routes; and in Costa Rica, Nicaragua, Honduras, and Bolivia, judiciaries deployed the unConstitutional Constitutional Amendment doctrine in order to eliminate rather than to protect term limits. After mapping the major Constitutional decisions issued on this issue in Latin America in recent years, the authors argue that transnational anchoring holds some promise in clarifying the proper scope of control of Constitutional change regarding term limits.
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from an unConstitutional Constitutional Amendment to an unConstitutional constitution lessons from honduras
Social Science Research Network, 2018Co-Authors: David Landau, Rosalind Dixon, Yaniv RoznaiAbstract:The unConstitutional Constitutional Amendment doctrine has emerged as a highly successful, albeit still controversial, export in comparative Constitutional law. The doctrine has often been defended as protecting a delegation from the people to the political institutions that they created. Other work has noted the doctrine’s potential utility in guarding against abusive Constitutionalism. In this piece, we consider how these justifications fare when expanded to encompass claims against the original constitution itself, rather than a later Amendment to the text. That is, beyond the unConstitutional Constitutional Amendment doctrine, can or should there be a doctrine of an unConstitutional constitution? Our question is spurred by a puzzling 2015 case from Honduras where the Supreme Court held an unamendable one-term limit on presidential terms, as well as protective provisions punishing attempts to alter that limit, to be unConstitutional. What is particularly striking about the case is that these provisions were not later Amendments to the constitution, but rather parts of the original 1982 constitution itself. Thus, this article examines the possibility of ‘an unConstitutional constitution’.
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transnational Constitutionalism and a limited doctrine of unConstitutional Constitutional Amendment
International Journal of Constitutional Law, 2015Co-Authors: Rosalind Dixon, David LandauAbstract:A deep tension exists in many parts of the world between commitments to democracy and procedures for Constitutional Amendment. Amendments are frequently passed that follow formal democratic procedures but are aimed at achieving anti-democratic or “abusive” Constitutional aims—i.e., to help powerful presidents extend their term in office, to remove parliamentary or federalism-based checks on executive power, and to narrow or suspend basic human rights protections. Limiting a power of Constitutional Amendment, therefore, can have clear democratic benefits. One way to do this is via a judicially enforceable doctrine of “unConstitutional Constitutional Amendment.” While such a doctrine may not be a complete solution to anti-democratic uses of Constitutional Amendment powers, it can create an additional hurdle to change. But such a doctrine should be approached with caution from a democratic perspective, because it can also create a significant road-block to the legitimate use of Amendment procedures as a means of overriding courts decisions deemed unreasonable or unacceptable by a majority of citizens. In order to promote democracy rather than undermine it, any doctrine of unConstitutional Constitutional Amendment must be limited in scope. This article argues that because threats to a democratic order are so varied, and can be altered or staged by would-be authoritarian actors, limiting the doctrine to a narrow set of institutional provisions or principles defined ex ante is unlikely to be a stable solution. Instead, courts must rely on a broader doctrine that is nonetheless limited to Constitutional Amendments that clearly pose a substantial threat to core democratic values. This article also argues that an effective way to limit the use of such a doctrine is by tying its use to transnational Constitutional norms. Engagement with transnational Constitutional law will help to limit both the kinds of principles courts define as fundamental and the sorts of institutional changes that are alleged to pose a substantial threat to those principles. The article shows how engagement with transnational materials can serve as a workable check on a doctrine of unConstitutional Constitutional Amendment, helping to separate cases where the doctrine must be deployed to defend democracy from cases where its use is unnecessary.
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transnational Constitutionalism and a limited doctrine of unConstitutional Constitutional Amendment
Social Science Research Network, 2015Co-Authors: Rosalind Dixon, David LandauAbstract:This article, part of the ICON Symposium on The Challenge of Formal Amendment, was presented at the Inaugural Association of American Law Schools (AALS) Academic Symposium on January 5, 2014. A deep tension exists in many parts of the world between commitments to democracy and procedures for Constitutional Amendment. Amendments are frequently passed that follow formal democratic procedures but are aimed at achieving anti-democratic or “abusive” Constitutional aims — i.e. to help powerful presidents extend their term in office, to remove parliamentary or federalism-based checks on executive power, and to narrow or suspend basic human rights protections. Limiting a power of Constitutional Amendment, therefore, can have clear democratic benefits. One way to do this is via a judicially enforceable doctrine of “unConstitutional Constitutional Amendment.” While such a doctrine may not be a complete solution to anti-democratic uses of Constitutional Amendment powers, it can create an additional hurdle to change. But such a doctrine should be approached with caution from a democratic perspective, because it can also create a significant road-block to the legitimate use of Amendment procedures as a means of overriding courts decisions deemed unreasonable or unacceptable by a majority of citizens. In order to promote democracy rather than undermine it, any doctrine of unConstitutional Constitutional Amendment must be limited in scope. This article argues that because threats to a democratic order are so varied, and can be altered or staged by would-be authoritarian actors, limiting the doctrine to a narrow set of institutional provisions or principles defined ex ante is unlikely to be a stable solution. Instead, courts must rely on a broader doctrine that is nonetheless limited to Constitutional Amendments that clearly pose a substantial threat to core democratic values. This article also argues that an effective way to limit the use of such a doctrine is by tying its use to transnational Constitutional norms. Engagement with transnational Constitutional law will help to limit both the kinds of principles courts define as fundamental and the sorts of institutional changes that are alleged to pose a substantial threat to those principles. The article shows how engagement with transnational materials can serve as a workable check on a doctrine of unConstitutional Constitutional Amendment, helping to separate cases where the doctrine must be deployed to defend democracy from cases where its use is unnecessary.
Oran Doyle - One of the best experts on this subject based on the ideXlab platform.
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Constitutional Amendment and public will formation deliberative mini publics as a tool for consensus democracy
Social Science Research Network, 2020Co-Authors: Oran Doyle, Rachael WalshAbstract:Constitutionalism is in the midst of both a participatory and a deliberative turn. In this paper, we explore one aspect of this turn – the use of deliberative innovations to enhance Constitutional Amendment processes. Ireland has been cited as almost a paradigm case for such experimentation. We assess deliberative mini-publics’ potential as a tool for consensus democracy based on the experience and impact of the Irish Citizens’ Assembly that made recommendations for wholesale reform of Ireland’s abortion laws in 2018. We identify a ‘legislative-majority-plus’ model for Constitutional Amendment deployed in most jurisdictions with master-text constitutions and on that basis, characterise Constitutional Amendment as an aspect of consensual, rather than competitive, democracy. Based on this understanding of the function of Constitutional Amendment processes, we argue that the Citizens’ Assembly played a significant role in the process of public will formation. In particular, it (a) helped to generate political and public support for a particular form of liberalization—abortion on request within the first 12 weeks, and (b) made it easier for legislators to avoid the incentives of electoral politics and formulate an Amendment proposal that attracted wide support despite intense opposition. However, we raise concerns about the normative legitimacy of that impact, based on deficiencies in the representativeness of the Assembly, arguing that in order to be a tool for will formation, rather than manipulation, in respect of Constitutional Amendment, deliberative mini-publics should be designed so as to enhance their representativeness.
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Constitutional Amendment and the democratic mediation of political disagreement assessing the impact of deliberative mini publics
Social Science Research Network, 2020Co-Authors: Oran Doyle, Rachael WalshAbstract:Ireland has been to the forefront of the Constitutional turn in deliberative democracy, with referendums on same-sex marriage and abortion—held following deliberative mini-publics — attracting global attention. Little more than cursory reference has been made, however, to the recommendations of Ireland’s deliberative mini-publics that did not gain traction in the Constitutional Amendment process. To address this blind-spot, we present the first comprehensive account of the political take-up of recommendations for Constitutional Amendment made by Ireland’s deliberative mini-publics. We show that of 28 discrete recommendations, only three resulted in Constitutional Amendment. Recommendations were much more likely to lead to Constitutional Amendments if (a) they responded to real points of political disagreement where there was already some public interest in Constitutional change, and (b) they did not contradict deep-seated commitments of legislative majorities. The best explanation for this record, we suggest, lies in the role that Constitutional Amendment processes play in the mediation of political disagreement. It is not merely the case that Constitutional Amendment procedures underwrite the stability of other Constitutional processes; the impetus for Constitutional Amendment is generated through ordinary Constitutional processes, with the support of a legislative majority required for Constitutional change. This connects Constitutional Amendment with the other components of the Constitutional framework for the mediation of disagreement: legislation and judicial decision-making. As such, assessments of impact must specify what role a deliberative mini-public played over and above general political attitudes.
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constraints on Constitutional Amendment powers
Social Science Research Network, 2017Co-Authors: Oran DoyleAbstract:There exists a widespread practice of constraining Constitutional Amendment powers through rules or standards that determine the validity of Constitutional Amendments. These rules and standards arise both from Constitutional texts and judicial decisions. This practice raises significant concerns about the distribution of power both between generations and between political actors. The fundamental question is whether the values served by constraints on Amendment powers can justify a contemporary majority being subject to a past generation or a judicial elite. The literature mostly fails to address this question directly, focusing instead on the quantum of change introduced by Constitutional Amendments. Eliding different understandings of the word ‘Constitutional’, problematic Amendments are identified by the extent to which they depart from the moral value of Constitutionalism, or the extent to which they go beyond what is claimed to be a proper conceptualisation of Constitutional Amendment, or by some combination of these approaches. In this chapter, I suggest a different approach. Four cross-cutting distinctions establish a typology of ways in which the power of Constitutional Amendment can be constrained. This typology focuses attention on how constraints disempower contemporary majorities in favour of past generations or judicial elites, thus providing a baseline against which we can assess whether those constraints are justified. Constraints that seek to serve majoritarian values pose the relatively simple question of whether the detriment to majoritarian values in the here and now is justified by the protection of majoritarian culture over the medium to long term. Constraints that prevent change to the fundamental features of the polity are unjustified: there can be no objection to the current generation using Constitutional processes to transform its polity. Constraints that seek to preserve counter-majoritarian values are the most difficult to assess, raising as they do a competition between the incommensurable values of majoritarian democracy and the protection of minorities from unjust laws.
David Landau - One of the best experts on this subject based on the ideXlab platform.
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from an unConstitutional Constitutional Amendment to an unConstitutional constitution lessons from honduras
Global Constitutionalism, 2019Co-Authors: David Landau, Rosalind Dixon, Yaniv RoznaiAbstract:The unConstitutional Constitutional Amendment doctrine has emerged as a highly successful, albeit still controversial, export in comparative Constitutional law. The doctrine has often been defended as protecting a delegation from the people to the political institutions that they created. Other work has noted the doctrine’s potential utility in guarding against abusive Constitutionalism. In this article, we consider how these justifications fare when expanded to encompass claims against the original constitution itself, rather than a later Amendment to the text. That is, beyond the unConstitutional Constitutional Amendment doctrine, can or should there be a doctrine of an unConstitutional constitution? Our question is spurred by a puzzling 2015 case from Honduras where the Supreme Court held an unamendable one-term limit on presidential terms, as well as protective provisions punishing attempts to alter that limit, to be unConstitutional. What is particularly striking about the case is that these provisions were not later Amendments to the constitution, but rather parts of the original 1982 constitution itself. Thus, this article examines the possibility of ‘an unConstitutional constitution’, what we predict to be the next trend in global Constitutionalism.
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term limits and the unConstitutional Constitutional Amendment doctrine lessons from latin america
Social Science Research Network, 2018Co-Authors: David Landau, Yaniv Roznai, Rosalind DixonAbstract:This chapter examines the interaction between term limit provisions and the unConstitutional Constitutional Amendment doctrine in Latin America. It illustrates the varied approaches of courts concerning the validity of attempts to amend presidential term-limits. In Colombia, the Constitutional Court intervened to prevent what it saw as an undue easing of term limits (after permitting one round of easing); In Venezuela, Ecuador, and Bolivia, courts generally allowed attempts to ease or eliminate term limit using less demanding rather than more demanding procedural routes; and in Costa Rica, Nicaragua, Honduras, and Bolivia, judiciaries deployed the unConstitutional Constitutional Amendment doctrine in order to eliminate rather than to protect term limits. After mapping the major Constitutional decisions issued on this issue in Latin America in recent years, the authors argue that transnational anchoring holds some promise in clarifying the proper scope of control of Constitutional change regarding term limits.
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from an unConstitutional Constitutional Amendment to an unConstitutional constitution lessons from honduras
Social Science Research Network, 2018Co-Authors: David Landau, Rosalind Dixon, Yaniv RoznaiAbstract:The unConstitutional Constitutional Amendment doctrine has emerged as a highly successful, albeit still controversial, export in comparative Constitutional law. The doctrine has often been defended as protecting a delegation from the people to the political institutions that they created. Other work has noted the doctrine’s potential utility in guarding against abusive Constitutionalism. In this piece, we consider how these justifications fare when expanded to encompass claims against the original constitution itself, rather than a later Amendment to the text. That is, beyond the unConstitutional Constitutional Amendment doctrine, can or should there be a doctrine of an unConstitutional constitution? Our question is spurred by a puzzling 2015 case from Honduras where the Supreme Court held an unamendable one-term limit on presidential terms, as well as protective provisions punishing attempts to alter that limit, to be unConstitutional. What is particularly striking about the case is that these provisions were not later Amendments to the constitution, but rather parts of the original 1982 constitution itself. Thus, this article examines the possibility of ‘an unConstitutional constitution’.
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presidential term limits in latin america a critical analysis of the migration of the unConstitutional Constitutional Amendment doctrine
Social Science Research Network, 2018Co-Authors: David LandauAbstract:Across a number of countries including Venezuela, Colombia, Bolivia, Ecuador, Honduras, Costa Rica, and Nicaragua, incumbent presidents in Latin America have recently sought to amend their constitutions to eliminate or weaken presidential term limits. In some cases, these efforts to extend terms have been part of broader projects to consolidate power, weaken other state institutions, and tilt the electoral playing field in favor of incumbents. From a legal perspective, these cases are interesting because they highlight the limits of tools limiting Constitutional change, such as eternity clauses and the unConstitutional Constitutional Amendment doctrine, to constrain potentially antidemocratic or anti-liberal forms of Constitutional change. Although Constitutional texts in most of these cases gave courts ample ammunition to reject attempts to eliminate term limits or at least to force those changes down more demanding paths, courts did not stand in the way of most of these efforts and in some cases even used the doctrines to eliminate rather than protect term limits. The case studies highlight the extent to which the “superficial” spread of doctrines controlling Constitutional change may fail to block, and indeed may promote, forms of Constitutional change that threaten liberal democratic Constitutionalism. It also suggests possibilities for deepening the effectiveness of transnational dialogue on these issues.
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transnational Constitutionalism and a limited doctrine of unConstitutional Constitutional Amendment
International Journal of Constitutional Law, 2015Co-Authors: Rosalind Dixon, David LandauAbstract:A deep tension exists in many parts of the world between commitments to democracy and procedures for Constitutional Amendment. Amendments are frequently passed that follow formal democratic procedures but are aimed at achieving anti-democratic or “abusive” Constitutional aims—i.e., to help powerful presidents extend their term in office, to remove parliamentary or federalism-based checks on executive power, and to narrow or suspend basic human rights protections. Limiting a power of Constitutional Amendment, therefore, can have clear democratic benefits. One way to do this is via a judicially enforceable doctrine of “unConstitutional Constitutional Amendment.” While such a doctrine may not be a complete solution to anti-democratic uses of Constitutional Amendment powers, it can create an additional hurdle to change. But such a doctrine should be approached with caution from a democratic perspective, because it can also create a significant road-block to the legitimate use of Amendment procedures as a means of overriding courts decisions deemed unreasonable or unacceptable by a majority of citizens. In order to promote democracy rather than undermine it, any doctrine of unConstitutional Constitutional Amendment must be limited in scope. This article argues that because threats to a democratic order are so varied, and can be altered or staged by would-be authoritarian actors, limiting the doctrine to a narrow set of institutional provisions or principles defined ex ante is unlikely to be a stable solution. Instead, courts must rely on a broader doctrine that is nonetheless limited to Constitutional Amendments that clearly pose a substantial threat to core democratic values. This article also argues that an effective way to limit the use of such a doctrine is by tying its use to transnational Constitutional norms. Engagement with transnational Constitutional law will help to limit both the kinds of principles courts define as fundamental and the sorts of institutional changes that are alleged to pose a substantial threat to those principles. The article shows how engagement with transnational materials can serve as a workable check on a doctrine of unConstitutional Constitutional Amendment, helping to separate cases where the doctrine must be deployed to defend democracy from cases where its use is unnecessary.
Rachael Walsh - One of the best experts on this subject based on the ideXlab platform.
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Constitutional Amendment and the democratic mediation of political disagreement assessing the impact of deliberative mini publics
Social Science Research Network, 2020Co-Authors: Oran Doyle, Rachael WalshAbstract:Ireland has been to the forefront of the Constitutional turn in deliberative democracy, with referendums on same-sex marriage and abortion—held following deliberative mini-publics — attracting global attention. Little more than cursory reference has been made, however, to the recommendations of Ireland’s deliberative mini-publics that did not gain traction in the Constitutional Amendment process. To address this blind-spot, we present the first comprehensive account of the political take-up of recommendations for Constitutional Amendment made by Ireland’s deliberative mini-publics. We show that of 28 discrete recommendations, only three resulted in Constitutional Amendment. Recommendations were much more likely to lead to Constitutional Amendments if (a) they responded to real points of political disagreement where there was already some public interest in Constitutional change, and (b) they did not contradict deep-seated commitments of legislative majorities. The best explanation for this record, we suggest, lies in the role that Constitutional Amendment processes play in the mediation of political disagreement. It is not merely the case that Constitutional Amendment procedures underwrite the stability of other Constitutional processes; the impetus for Constitutional Amendment is generated through ordinary Constitutional processes, with the support of a legislative majority required for Constitutional change. This connects Constitutional Amendment with the other components of the Constitutional framework for the mediation of disagreement: legislation and judicial decision-making. As such, assessments of impact must specify what role a deliberative mini-public played over and above general political attitudes.
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Constitutional Amendment and public will formation deliberative mini publics as a tool for consensus democracy
Social Science Research Network, 2020Co-Authors: Oran Doyle, Rachael WalshAbstract:Constitutionalism is in the midst of both a participatory and a deliberative turn. In this paper, we explore one aspect of this turn – the use of deliberative innovations to enhance Constitutional Amendment processes. Ireland has been cited as almost a paradigm case for such experimentation. We assess deliberative mini-publics’ potential as a tool for consensus democracy based on the experience and impact of the Irish Citizens’ Assembly that made recommendations for wholesale reform of Ireland’s abortion laws in 2018. We identify a ‘legislative-majority-plus’ model for Constitutional Amendment deployed in most jurisdictions with master-text constitutions and on that basis, characterise Constitutional Amendment as an aspect of consensual, rather than competitive, democracy. Based on this understanding of the function of Constitutional Amendment processes, we argue that the Citizens’ Assembly played a significant role in the process of public will formation. In particular, it (a) helped to generate political and public support for a particular form of liberalization—abortion on request within the first 12 weeks, and (b) made it easier for legislators to avoid the incentives of electoral politics and formulate an Amendment proposal that attracted wide support despite intense opposition. However, we raise concerns about the normative legitimacy of that impact, based on deficiencies in the representativeness of the Assembly, arguing that in order to be a tool for will formation, rather than manipulation, in respect of Constitutional Amendment, deliberative mini-publics should be designed so as to enhance their representativeness.