Formal and Informal Constitutional Amendment

University of Baltimore Law University of Baltimore Law

ScholarWorks@University of Baltimore School of Law ScholarWorks@University of Baltimore School of Law

All Faculty Scholarship Faculty Scholarship

12-2020

Formal and Informal Constitutional Amendment Formal and Informal Constitutional Amendment

Mortimer N.S. Sellers

University of Baltimore School of Law

, [email protected]

Follow this and additional works at: https://scholarworks.law.ubalt.edu/all_fac

Part of the Law Commons

Recommended Citation Recommended Citation

Mortimer N. Sellers,

Formal and Informal Constitutional Amendment

, 50 General Reports of the XXth

General Congress of the International Academy of Comparative Law - Rapports généraux du XXème

Congrès général de l'Académie internationale de droit comparé. Ius Comparatum - Global Studies in

Comparative Law 493 (2020).

Available at: https://scholarworks.law.ubalt.edu/all_fac/1167

This Article is brought to you for free and open access by the Faculty Scholarship at ScholarWorks@University of

Baltimore School of Law. It has been accepted for inclusion in All Faculty Scholarship by an authorized

administrator of ScholarWorks@University of Baltimore School of Law. For more information, please contact

[email protected].

Formal and Informal Constitutional Amendment

Mortimer Newlin Stead Sellers

Abstract

The constitutional search for greater justice is the

animating principle that guides or should guide constitu-

tional amendment and constitutional change whenever

and wherever it occurs. Almost all states and governments

formally declare their constitutional commitment to jus-

tice, liberty, and the rule of law. Yet reports on constitu-

tional amendment from nations throughout the world

remind us that we live at a moment of constitutional

peril. The general trend of constitutional government in

many states has been towards greater corruption, violence,

and arbitrary action. This illustrates the dual and paral lel

importance of constitutional principles and constitutional

structures in securing the rule of law. Constitutional

principles animate the constitution al structures that apply

our constitutional principles in practice. Constitutional

amendment and constitutional change can be formal,

informal, cultural, and even at times, illegal. Which

techniques are appropriate will vary according to the

circumstances. The failure of widely shared and well-

developed formal or structural constitutional

arrangements to prevent the decline of the rule of law in

the early twenty-ﬁrst century conﬁrms the important role

that informal and cultural constitutional change have

always played in the development of constitutional justice.

While constitutions can declare the importance of liberty,

justice, and the public welfare, and establish constitutional

checks and balances to protect them, they cannot guaran-

tee good faith. That depends on the lawyers, judges , and

scholars who make the constitution real.

Constitutional amendment is the process by which

constitutions change. The use of “amendment” in this context

signiﬁes the expectation that change will be for the better,

removing faults that mar the status quo.

Such amendment

may be formal or informal, open or hidden, deeply consid-

ered or happened upon without much thought. What makes

an amendment legitimate and justiﬁed (or not) is its actual

effectiveness in making the constitution better, which is to

say in securing liberty and justice through law. This Report

reﬂects the insights of twenty authors from fourteen

jurisdictions, who considered how their nations and

constitutions use constitutional amendment to secure a more

just society for all those subject to their government and

laws—or fail to do so—by which methods, and with what

consequences.

Every legal system has a constitution, by which I mean an

overall structure and guiding rules by which it operates. The

concept and reality of any legal system entails the existence of

such a governing constitution, and vice versa. Thus, when we

study legal systems, we seek to describe their constitutions

and when we seek to create or improve legal systems, we

seek to develop or amend these constitutions. Constitutions

may also change or evolve without the deliberate intervention

of any particular actor, but when deliberately made or

recognized we call the process of constitution al change

“amendment.” To “amend” a constitution is deliberately to

change or recognize a change in the guiding rules or overall

structure by which the legal system operates in practice.

Constitutional amendment can be either formal or infor-

mal, just as constitutions themselves can be either formal or

informal. Formal constitutional amendment is amendment

according to the declared rules or announced structures of

This General Report will be also published, together with the National

Reports from each jurisdiction, by Springer Nature Switzerland in a

thematic volume.

M. N. S. Sellers (*)

University of Baltimore, Baltimore, MD, USA

From the Latin “emendare,” “to remove a fault.”

On Constitutional change in general see recently, Albert et al. (2017);

Contiades (2013).

For the development of modern constitutionalism see Adams (1788);

Cf. Montesquieu (1748).

The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2021

K. Boele-Woelki et al. (eds.), General Reports of the XXth General Congress of the International Academy of Comparative

Law - Rapports généraux du XXème Congrès général de l’Académie internationale de droit comparé,

Ius Comparatum - Global Studies in Comparative Law 50, https://doi.org/10.1007/978-3-030-48675-4_17

493

the system itself. Informal constitutional amendment is con-

stitutional amendment by any other means, uncontemplated

by, unstated by, or contrary to the declared rules or

announced structures of the legal system being modiﬁed.

Sometimes the legal system has very few declared rules or

announced structure. Then constitutional amendment will

mostly be informal. Sometimes the existence or nonexistence

or the legitimacy or illegitimacy of declared rules and

structures of amendment governing a legal system remains

disputed. Then the formality or informality or existence or

legitimacy of constitutional amendments will also be subject

to dispute.

There may also be a gap between formally recognized and

informally effect ive methods of constitutional amendment.

The mere declaration or announcement of constitutional

structures or rules does not necessarily make them effective

in fact. Methods of amendment not declared or formally

accepted by the legal system may be more effective than

those that are formally announced. The nature of constitu-

tional amendment and constitutional change, the methods by

which change takes place, and the circumstances in which

amendment or change is appropriate will all differ depending

on the legitimacy, effectiveness, justice, history, and other

contingencies of the existing constitution and institutions of

the legal system in question. Yet there are some unifying

themes, common aspirations, shared principles and vocabu-

lary that emerge from the systematic study and comparison of

constitutional amendment and constitutional change as it

takes place in different jurisdictions. Comparisons also help

clarify which techniques are most useful in what

circumstances, and when they are not.

1 Constitutional Amendment

Identifying common themes and shared principles in the

project of constitutional government and the science of con-

stitutional law requires consideration of the nature of the

enterprise. What is— or should be—the purpose of constitu-

tional amendment? Explicit or implicit in all the national

reports on constitutional amendment and constitutional

change is the statement or assumption that the only legitimate

purpose of constitutional amendment is to improve the con-

stitution in question, by making it more effective in achieving

its aims. Those proposing amendments or constitutional

change always also advance the necessary justifying asser-

tion that the proposed alteration will make the constitution

better than it was before.

This makes the assumed purposes of constitutional

amendment and formal and informal constitutional change

dependent in turn on the purpose or purposes of constitutions

and constitutionalism in general. If the purpose of constitu-

tional amendment is or should be to make constitutions

better, then there must be a standard against which

constitutions may be judged to be good or bad—and there-

fore to be better or worse and in need of amendment, or not.

Here too some shared basic assumptions pervade the reports:

constitutions are better when they establish justice through

the rule of law, and worse when they facilitate injustice or

oppression.

Understanding the nature and purpose of a practice (or a

document) makes the practice or institution easier to

improve. The value of compa rative constitutional law arises

not only from the beneﬁts of learning about the practices of

others as a good in itself, but also from the insights such

comparisons bring to our own particular institutions and

laws. We see our own strengths and ﬂaws more clearly in

the light of comparison and receive guidance and inspiration

for how we might legislate, govern, and adjudicate better in

the future than we have in the past.

2 Constitutionalism

Constitutionalism is the desire to understand and deliberately

to improve the overall structure and guiding rules by which a

legal system operates. Every institution has a constitution,

whether its structure has been considered or reﬂected upon or

not. The constitution is simply those rules by which an

institution predictably operates, at any particular time. Such

rules need not be self-consciously maintained, or even under-

stood to be a “constitution ” in the most basic sense of that

word. But constitutionalism as a discipline goes further. It

subjects the existing form of government to scrutiny. “Consti-

tutionalism” is the deliberate study of and search for improve-

ment in the constitutional architecture of the State. The very

term “amendment” implies ameliorisation. Formal and infor-

mal constitutional amendment are the tools of constitutional-

ism and reﬂect the constitutionalists’ deliberate attempt to

implement necessary constitutional improvements by design.

All human societies and institutions have constitutions,

but as applied to “States”, “Commonwealths”,or

“Republics” the process becomes more considered. Constitu-

tionalism develops as we seek to perfect our legal and politi-

cal institutions, through deliberate constitutional change or

amendment. Since justice is the measure of political and

constitutional legitimacy, the only legitimate purpose of con-

stitutional amendment is to make the constitution more just,

and all constitutional amendments implicitly claim to do

so. Constitutions and other political institutions are justiﬁed

only to the extent that are actually just, and therefore all

political and legal institutions tacitly or explicitly claim to

be just in reality.

The search for justice and the claim of justice that are at

the heart of the constitutional project need not be absolute or

fully successful to justify constitutional change or

494 M. N. S. Sellers

amendment. To be justiﬁed, the change must be at least a

little bit for the better and must at least somewhat advance

public institutions towards the ultimate and unachievable

goal of establishing a perfectly just republic. Constitutional

change can be legitimate or illegitimate, justiﬁed or unjusti-

ﬁed, appropriate or not. The primary value and purpose of the

study of comparative constitutional law through the gathering

of scholarship from different jurisdictions, and the publica-

tion of the results, is to advance the shared enterprise of

building more just States and societies through law.

3 The Rule of Law

Proponents of constitutionalism and better constitutional

government and institutions generally assert one or the

other or both of two fundamental values as the central princi-

ple of their pursuit of justice through constitutional law.

These two basic principles—the frequently reiterated

aspirations for “liberty” and the “rule of law”—are in many

respects the same thing and have both been at the heart of the

constitutional project since the writings of Aristotle

and

Cicero.

In modern legal discourse they have come to repre-

sent the two main elements of well-constructed constitutions

everywhere. “The rule of law” primarily arises from the

procedural and structural elements of constitutions that seek

to control and guide the deliberation and acti ons of p ublic

ofﬁcials towards their proper end of justice through checks

and balances, the separation of powers, federalis m, and simi-

lar structural devices. “Liberty”, in contrast, has come to

stand for those substantive and fundamental human rights

declared and protected by the constitution, without regard to

structure or procedu re. In fact, however, substantive liberty

and the procedural rule of law are fully complementary and

neither is possible without the other.

The rule of law bears further scrutiny because it is so often

appropriated by autocrats or traduced by self-interested mis-

construction. The “rule of law” should not be confused with

“rule by law,” to imp lement the will of corrupt facti ons and

self-interested despots. The “rule of law” in its most useful

sense is “the rule of law and not of men” (“imperium legum”)

promoted by republican Rome and the eighteenth-century

Enlightenment that inaugurated the modern science of con-

stitutional law.

The rule of law in this sense demands that the

laws should rule and not the will or desires of powerful public

ofﬁcials. There is no rule of law when power can achieve its

private aims through misappropriation of the public legal

apparatus. The rule of law demands that ofﬁcers of the state

should themselves be constrained by law and prevented from

arbitrary action. Student s of constitutional science since

Machiavelli and Adams have sought to discover “what com-

bination of powers in society, or what form of government,

will compel the formation of good and equal laws, an impar-

tial execution, and faithful interpretation of them , so that

citizens may constantly enjoy the beneﬁt of them, and be

sure of their continuance.”

The rule of law in this sense requires the absence of

arbitrary government, which is to say, the prevention of any

exercise of governmental power that departs from

government’s only legitimate purpose, which is service to

the welfare of all those subject to its rule. Many governments

depart from this standard. Many constitutions, much consti-

tutional change, and numerous constitutional amendments

violate the rule of law by facilitating oppression, corruption,

and the deliberate betrayal of justice and the public good by

those who ought to keep them safe. But since doing so

violates the justifying purpose of constitutional government,

any governments that do so diminish their own legitimacy,

and lay themselves open to criticism. Knowing this, corrupt

and self-interested rulers dissimulate their actual purposes.

All constitutions, all constitutional change, and all constitu-

tional amendments claim to serve justice, even when they do

not do so in fact.

4 Liberty

Liberty in its most basic sense is equal citizenship in a just

community. To live under a just constitution is to enjoy

liberty, and vice versa. In this sense liberty and the rule of

law go hand in hand. Where there is the rule of law there is

liberty, and otherwise not.

But liberty has a second, more

speciﬁc connotation, as the enjoyment of fundamental

“liberties,” or human rights. Some rights are so basic that

there is no justice without them, and therefore no liberty until

they are restored. This substantive liberty supplements the

procedural liberty associated with the rule of law. Good

constitutions address both requirements: ﬁrst, the procedural

checks and balances that prevent arbitrary government; and

second, the substantive protections that declare and protect

fundamental human rights.

The substantive liberty of fundamental human rights, like

the procedural liberty of the rule of law, may differ in its

requirements depending on the circumstances. Constitution-

alism everywhere shares (or claims to share) the same basic

goals of justice and the common good, but societies differ in

their development, education, needs, and circumstances. The

project of constitutional change is not and should not be

Especially Aristoteles, Politika.

Especially M. Tullius Cicero, de republica, de legibus, de ofﬁciis.

Silkenat et al. (2014) and Sellers and Tomaszewski (2010).

Adams (1787).

Titus Livius. 2.1.

See e.g. Reidy and Sellers (2005).

Formal and Informal Constitutional Amendment 495

simply to discover the best institutions of the most free

societies and to implement them everywhere, but rather to

move each State forward towards greater liberty and justice,

as circumstances require or permit.

Aristotle, Cicero, Machiavelli, and Montesquieu all

engaged in the science of constitutionalism, seeking to

make forms of government better and more just. But the

real birth of deliberate constitutional amendment and consti-

tutional change came only with the republican revolutions of

the late eighteenth century, through their declared commit-

ment to liberty and the fundam ental rights of all human

beings, everywhere. Constitutions became written

documents, expressly dedicated to liberty and justice, with

speciﬁc procedu res for amendment, and carefully drafted

bills of rights. This is the project of constitutionalism,in

which all governments should be engaged, and to which the

contributors to this volume have dedicated their careers.

5 Amendment

The project of constitutionalism is also the purpose of consti-

tutional amendment, which moves the constitution forward

towards greater effectiveness and justice. In the new world of

written constitutions, we generally think of constitutional

change as taking place in or through four broad forms or

techniques: formal constitutional amendment; informal con-

stitutional amendment; customary constitutional amendment;

and illegal constitutional amendment. All four of these

techniques have the effect of implementing constitutional

change. All four techniques have the same declared purpose

of creating a more just society. And all four can be legitimate

or illegitimate or justiﬁed or unjustiﬁed, depending on the

circumstances in which they take place.

Formal constitutional amendment takes place with the

introduction of written changes into the text of the constitu-

tion itself. Informal constitutional amendment is also a delib-

erate change, not to the written text, but to the interpretation

or application of the written constitution in practice. Custom-

ary constitutional amendment is the non-deliberate alteration

of the constitution through the evolution of the culture and

understanding of the constitution and constitutional interpre-

tation. Illegal constitutional amendment is the deliberate dis-

regard of the constitution and its requirements, sometimes

behind the veil or some scant pretense of interpretation, by

simply violating the constitution’s actual provisions, and

doing something contrary to what the constitution would

have required, if understood sincerely.

Notwithstanding their starkly contrasting modes of opera-

tion, all four of these well-known methods of constitutional

amendment or constitutional change share the same underly-

ing putative purpose and two fundamental underlying

principles. Whether we seek to change the written constitu-

tion, the interpretation of the constitution, the culture of

constitutional legality, or the effectiveness of its operation,

we claim to do so in pursuit of justice. We claim to amend

constitutions in order to secure just laws, to maintain just

institutions, to interpret the law s justly, or to develop a culture

that supports justice and a just society for all. We claim this—

with varying degrees of sincerity—because to admit other-

wise would vitiate the enterprise.

6 Constitutional Duties

The duties of those who interpret, explain, enforce, study,

teach, and amend the constitution arise directly from the

constitution’s only proper purpose and justiﬁcation, which

is justice. This means that the nature of the constitution and

the nature of constitutional interpretation should vary

according to the social and historical realities of the societies

and institutions in which the proposed constitutional change

takes place. The constitutional changes or amendments that

will be appropriate at different times and in different places

will depend on the nature of the existing constitution, the

nature of the society it governs, and the circumstances in

which it operates.

Suppose that a constitution is substantially just, in the

sense that it establishes institutions that facilitate worthwhile

and fulﬁlling lives for all those subject to its rule. If the

governing institutions are just, then we share in a duty to

protect and defend them. But when the existing constitution

has established or maintains an unjust society we have a duty

to establish more just institutions, ideally by formal constitu-

tional amendment. So, for example, after ﬁghting a Civil War

over the institution of slavery, the United States amended its

constitution to abolish slavery, and establish the principle that

all persons should enjoy due process of law and the equal

protection of the laws. This was an improvement, which

made the constitution better.

Had there been no formal amendment, however, as before

the War, when the text of the constitution seemed to require

the return to slavery of those who managed to escape, then

conscientious judges should have interpreted the Constitu-

tion to make it more just. Good judges would have done so in

the face of a difﬁcult text and perhaps even in violation of the

text, because slavery is such a fundamental injustice that it

requires amendment. Teachers of constitutional law,

professors and other comm entators and publicists, should

have guided the constitutional culture in such a way as to

Cf. Sellers (2003).

Cf. Roznai (2017).

See, Constitution of the United States Amendment XIII (December

6, 1865) and Amendment XIV (July 9, 1869).

496 M. N. S. Sellers

protect the fugitive slaves, because slavery is so clearly

antithetical to justice.

7 Constitutional Justice

The example of the great injustice of slavery in the United

States before the Civil War, and the further injustice of racial

discrimination and racial oppression afterwards, illustrate the

methods and necessity of constitutional change, and the

inescapable standard of justice against which to measure

every aspect of the constitutional project. Similar, if perhaps

smaller, injustices exist in every political community, and

need to be rectiﬁed. Formal and informal constitutional

amendments and constitutional changes always take place

in the light of justice and have no use or justiﬁcation unless

they take justice into account. At the same time, justice is

impossible without constitutionalism. Constitutional obscu-

rity conceals and facilitates injustice, and only the clear-

sighted examination and open discussion of scientiﬁc consti-

tutionalism can overcome the concealed manipulations of

unjustiﬁed authority.

Constitutional justice is the only legitimate aim of consti-

tutional amendment, and should give continuous guidance to

all students of constitutional law. Constitutions play not only

a procedural and substantive role in the search for the com-

mon good and the protection of fundamental liberties, but

also an educative role in improving the civic and constitu-

tional cultures of the societies they regulate and protect.

Simply by declaring fundamental rights, constitutions make

these rights more real. By announcing commitments to jus-

tice, liberty, and the comm on good, constitu tions make

citizens and public ofﬁcials more likely to respec t their

duties. Not that we will always fulﬁll all the constitutional

duties that we know to exist, but knowledge of justice is the

ﬁrst step towards respect for justice, and its eventual realiza-

tion. Even hypocrisy is better than ignorance.

Hypocrisy is the tribute that vice pays to virtue,

which is

why even the worst regimes declare noble constitutional

aims. They do this to claim a legitimacy they do not deserve.

Yet even hypocritical declarations of rights and duties have

the virtue of reminding us that such constitutional rights and

duties exist, and noble sentiments once embedded in

constitutions may bloom years later to move the law towards

greater justice. This gives formal constitutional amendment a

value that transcends its actual effectiveness. Formal, infor-

mal, cultural, and even illegal constitutional change are use-

ful and justiﬁed only when they make the world more just,

but they often do so over time, with considerable opposition

and delay.

8 Argentina

Actual constitutions and experiences of constitutional

amendment in various nations illustrate both the general

principles and some differing realities of constitutional

change. For example, the Argentine Constitution

contemplates a very formal process of constitutional amend-

ment, beginn ing with a special act of Congress summoning a

constitutional convention. Nevertheless, a constitutional

amendment of 1994 made it possible for treaties to achieve

constitutional status, bypassing the need for a constitutional

convention. This facilitated Argentina’s conformation to

global standards of justice, without facin g the procedural

limitations of ordinary constitutional politics. The 1994

amendment itself respected formal procedures, so constitu-

tional propriety was maintained, but it changed the n ature of

the Constitution, making formal constitutional change much

easier than it had been before.

The stricter the formal process of amendment, as in

Argentina, the more likely there will be informal

“amendments” made to the constitutional regime through

judicial interpretation. Estela Sacristan, in report on constitu-

tional amendment in Argentina, notes many emergency

measures eroding property rights that were tolerated by the

Argentine Supreme Court und er the guise of “regulation.” A

series of cases beginning with a decision concerning rent

control in Ercolano c/ Lanteri de Renshaw showed great

caution in protecting property rights. The court’s motivation

reﬂected crisis conditions and economic necessity in the

wake of the First World War, but the rationale offered by

the Court to justify such decisions relied on the pretense that

such regulations were “temporary.” This was disingenuous,

but effective.

The Argentine example illustrates the symbiotic relation-

ship between formal and informal constitutional change. The

great difﬁculty of achieving form al amendment in Argentina

encouraged informal amendment through the

non-enforcement of formal constitutional requi rements.

This was particularly striking in the case of the right to a

jury trial, formally incorporated into the Constitution of

1853–1860 in Section 24. This right has never been fully

implemented by law and remains a nullity in practice.

9 Australia

Australia’s written Constitution was passed as a statute by the

Imperial Parliament in the United Kingdom in 1900.

Australians were consulted, but as a formal matter the

See e.g. Dyer (2012).

François, Duc de la Rochefoucauld, Réﬂections: ou sentences et

maximes morales (1664) #218: “L’hypocrisie est un homage que le

vice rend à la vertu.”

Formal and Informal Constitutional Amendment 497

constitution was imposed by the imperial power. To make

formal changes in the constitution, the Australian Parliament

must propose changes for approval by a majority of electors

in a majority of the Australian State s (and a majority of

electors overall). As in Argentina, this difﬁcult process has

made formal amendments rare, and en couraged informal

constitutional changes, mostly throu gh judicial interpreta-

tion. The High Court of Australia is the ultimate arbiter of

constitutional meaning in Australia, and has not been shy in

exercising its power.

The British background of the Australian constitutional

tradition left most human and civil rights with very little

formal constitutional prote ction, but the High Court has

stepped in to remedy the deﬁciency by construction. The

Court has found the implication of freedom of political com-

munication (for example) in the necessities of representative

democracy, as established by the Constitution as a whole.

Elisa Arc ioni observes in her report on constitutional amend-

ment in Australia that Commonwealth and State legislation

can and has been struck down as invalid when it conﬂicts

with fundamental human rights, including the right to politi-

cal participation, or any of the other rights necessary for

political participation to be effective, and well-informed.

The dubious legitimacy of an Australian constitution

imposed by the ﬁat of a foreign parliament, and with very

few embedded substantive and procedural rights, has there-

fore been much enhanced by an Australian judi cial culture

that values democracy, the rule of law, and fundamental

human rights. The ostensibly Federal natur e of the

Australian constitution has similarly given way in the face

of the needs of the Commonwealth as a whole. The formal

text of the Australian constitution today is almost unchanged

since its enac tment in 1900, yet it governs a democratic and

substantially just legal system, with the widespread support

of all elements of Australian society.

10 Belgium

The Belgian Constitution has been evolving since the 1970s

from a unitary state into a more federal form of government.

This was done through a series of six amendments

strengthening the role of linguistic groups in all aspects of

the Belgian legal system. This included the establishment of a

Belgian Constitutional Court, to review the constitutionality

of legislation and its compliance with the division of powers

between the linguistic groups. The Constitutional Court is the

ultimate arbiter of the Belgian Constitution and therefore the

primary engine of informal constitutional change in Belgium.

The Legislative Division of the Council of State also has

signiﬁcant inﬂuence, since it advis es the legislators on pro-

posed legislation. Belgian constitution al lawyers refer to this

process as “latent state reform,” unacknowledged

constitutional change that nevertheless has a profound effect

on the actual system of government in Belgium.

Jurgen Goosens, in his report on constitutional amend-

ment and constitution al change in Belgium, explains the

highly complicated nature of Belgian federalism, which

divides Belgium not only into linguistic communities, but

also into geographic regions. This deliberate structure of

checks and balances assures that nothing substantial can be

accomplished without broad communal as well as regional

consensus. Consensus in reality depends upon the secret

negotiations of party leaders and high public ofﬁcials, with

no input from the people and very little from Parliamen t or

any other organs of the State. This small elite often succeeds

in effective compromise, which the rest of society accepts,

but the process can be difﬁcult. In 2010 and 2011 it took

Belgian politicians 541 days to agree on a new state reform

and to form a new government. Thus, constitutional reform

and ordinary politics were unavoidably linked.

In fact, the constitutional amendment or “Sixth State

Reform” implementing the compromise of 2011 by substan-

tially altering the structure of the Senate, took place outside

the existing procedures for constitutional amendment, adding

(and then relying upon) a new “transitional provision” in the

clause regulating constitutional change. This sleight-of-hand

made compromise possible, and received the imprimatur of

the Venice Commission of the Council of Europe, but

illustrates the extent to which the legitimacy of constitutional

change in Belgium relies on the substantive necessity of

satisfying the communities, rather than the procedures

through which constitutional alte rations take place. Each

change has been incremental towards greater communal fed-

eralism and it is this value, rather than formal procedures,

which has been decisive.

11 China

Chinese judicial culture is dramatically different from that of

Belgium. Where Belgian judges act with self-conﬁdent inde-

pendence, Chinese judges demonstrate no independence at

either the formal or the practical level. The rule of law,

democracy, and fundamental human rights have no real

inﬂuence on judicial behavior in China. Thus, judges in

China have neither the constitutional power of judicial review

nor any incl ination to restrain or correct the formally illegal

actions of public ofﬁcials. Since 1949, China has adopted ﬁve

different formal constitutions, none of which had made a

substantial difference on the actual behavior of public

ofﬁcials, or underlying realities of party rule in an autocratic

and undemocratic State.

The most signiﬁcant element in actual Chinese legal and

political practice since 1949 has been the policy guidelines of

the Communist party, such as the “Two Whatevers”

498 M. N. S. Sellers

guideline of the 1970s: “Whatever policy decision was made

by Chairman Mao we must resolutely maintain; whatever

instruction was made by Chairman Mao, we must

unswervingly abide by.” Chengdong Jin in his report on

constitutional change in China notes that the seventh para-

graph of the Preamble on guidelines is the most frequently

amended part of the Chinese Constitution. Recent signiﬁcant

amendment made in this paragraph added “Xi Jinping

Thought on Socialism with Chinese Characteristics for a

New Era” to Marxism-Leninism, Mao Zedong Thought,

Deng Xiaoping Theory, the Thought of Three Represents

and the Scientiﬁc Outlook on Development as “Guiding

Ideologies of the State.”

Thus, although the Chinese Constitution now declares a

commitment to improve “the socialist rule of law,” it

reiterates that “the leadership of the Communist Party of

China is the most essential feature of socialism with Chinese

characteristics.” The new constitution also removes the

two-term limit that had been placed on the Chinese president,

eliminating what had been the most signiﬁcant restriction on

presidential power. Formal constitutional amendment in

China is approved by the National People’s Congress at the

proposal of the Communist Party of China, but in reality such

formal procedures simply ratify and make public decisions

already taken and implemented by the President and his

coterie. The Chinese Constitution is operative in reality

only insofar as it reveals the attitudes of those who are

actually in charge. The real constitution follows the vagaries

of the President’s will.

12 Cyprus

Cyprus is a former British colony and received its indepen-

dence and constitution, like Australia, through an Act of the

British Parliament. Cyprus was unusual in being a

bi-communal State, with guarantees and protections for

both the Greek Cypriot and the Turkish Cypriot

communities. For this reason, 48 out of the 199 Articles of

the 1960 Constitut ion are basic and unamendable, whereas

non-basic articles may be amended by a law passed by

separate special majorities comprising at least two-thirds of

the Greek-Cypriot representatives and at least two-thirds of

the Turkish-Cypriot representatives. This structure sought to

maintain communal solidarity by respecting all elements of

Cypriot society.

This noble intention met practical frustration when Greek

and Turkish Cypriots failed to develop the culture of cooper-

ation necessary to support their shared political institutions.

Greek Cypriots took charge of the government, Turkish

Cypriots withdrew their participation, and political control

and the island was divided between the two communities in a

manner wholly inconsistent with the formal constitutional

order. The only conceivable justiﬁcation for such actions

was the doctrine of necessity. The formal constitution

became a nullity, the Turkish half of the island disregarded

the Constitution and the Greek half of the island implemented

constitutional amendments without reference to the formal

provisions of the Constitution itself. Konstantinos Kombos

and Athena Herodotou explain in their report on constitu-

tional change in Cyprus that no other option was available,

given the irreconcilable breach between the two communities

on the island.

The Cypriot experience illustrate the complicated relation-

ship between substantive justice, procedural justice, legiti-

macy, and effectiveness in constitutional amendment and

constitutional law. The stru cture of the formal Cypriot con-

stitution was dictated by a political compromise between

Greece, Turkey, and the United Kingdom , never fully

accepted by the citizens of Cyprus. The substantive justice

of the compromises embodied in the document could not

overcome the mutual hostility of the Cypriots, undermining

the effectiveness of the formal document in practice. Neces-

sity therefore required unconstitutional constitutional

amendments—amendments which could be justiﬁed, if at

all, only by their substantive justice and utility. Thus, consti-

tutional amendment like constitution-drafting and constitu-

tional interpretation ultimately derives its legitimacy and

validity from the substantive requirements of justice.

13 The Czech Republic

The process of formal constitutional amendment in the Czech

Republic takes place by three-ﬁfths vote of each of the two

houses of the legislature, with the restriction that “Any

changes in the essential requirements for a democratic

law-based state are impermissible.”

The Constitution does

not specify what these are, giving considerable latitude to the

constitutional authorities and especi ally to the Constitutional

Court. The Constitutional Court has stated that “the guidi ng

principle is undoubtedly the principle of inherent inalienable,

non-prescriptable, and non-repealab le fundamental rights and

freedoms of individuals equal in dignity and rights; a system

based on principles of democracy, the sovereignty of the

people, and separation of powers, respecting the cited mate-

rial concept of a law-based state.”

The relatively recent date (1993) and favorable

circumstances of the Constitut ion of the Czech Republic

help to explain its clear commitment to the democratic rule

of law, and the principles this entails. Miluśe Kindlová,

points out in reporting on constitutional amendment in the

Art. 9(2) of the Constitution of the Czech Republic.

Ruling of the Constitutional Court of 26-11-2008. File No. 19108

(No. 446/2008 Coll.) par. 93.

Formal and Informal Constitutional Amendment 499

Czech republic that many of its drafters and interpreters

believed such principles to be binding and unamendable in

their own right, being principles required of any legitimate

constitution, and therefore beyond the competence of any

constitution-maker to limit or diminish their peremptory

effect. This would make the principles of the democratic

rule of law unamendable limitations on constitutional amend-

ment, even when the constitution makes no such express

prohibition in the body of its own written text.

The Czech Constitutional Court relied on Art. 9(2) of the

constitution, protecting the “democratic law-based state” to

impose a ratchet on constitutional amendment, so that “no

amendment of the Constitution may be construed in a way

which would lead to a limitation of the already attained level

of procedural protection of fundamental rights and

freedoms.”

This extends to the delegation of powers of

the Czech Republic to the European Union, which “ must

not go so far as to impair the very essence of the republic as

a sovereign and democratic state governed by the rule of law

and based on the respect for rights and freedoms of man and

citizen or establish a change in the essential requirements of

the democratic state based on the rule of law.”

14 Denmark

Denmark’s constitutional rules are essentially entrenched in

one single act, the “Grundloven,” or “Fundamental Law,”

consisting of 89 sections. Formal amendment of the

Grundloven requires a positive vote by two consecutive

Parliaments (with an intervening election) followed by a

direct vote of the electors, and royal approval. Thus, formal

constitutional amendment requires not only concurrence of

the government and two Parliaments, but also the electorate,

requiring both a majority of those voting and positive vote by

at least 40% of the electorate as a whole. This very demo-

cratic, but also quite restrictive procedure has rendered for-

mal constitutional amendment rather rare in Denmark.

The logic of this strict rule of formal constitutional amend-

ment implies that treaties and the case law of bodies

established by treaties cannot be read into the rules of the

Fundamental Act. Jens Hartig Danielsen in his report on

constitutional amendment in Denmark points out the Danish

treaties only require a simple majority of votes to take effect,

a much less stringent standard than the formal procedures

required to amend the basic law. The strictness of the formal

standard encou rages in Denmark the same creativity in infor-

mal procedures that arises whenever formal amendment is

hard to achieve. In this case, Denmark has developed certain

“constitutional customs” that modify the Gru ndloven. For

example, the Parliament’s Finance Committee is entitled to

authorize ministers to incur expenses, in clear contravention

of Section 46(2) of the Fundamental Act.

The Danish Constitution illustrates the ﬂexibility possible

in a very small and culturally homogenous nation, with a high

level of education and general consensus in favor of the rule

of law, social solidarity, and fundamental human rights.

Somewhat archaic and under-elaborated constitutional

structures operate well through the good will of governments,

legislators, and other public ofﬁcials. Formal constitutional

change takes place only with very broad social support and

generally ratiﬁes informal changes that have already occurred

in the society at large. Formal constitutional details become

less important when the society itself is operating well.

15 Hungary

Hungary illustrates the threats to constitutional government

that arise when the government itself sets out to undermine

the rule of law. Formal amendment has been comparatively

easy in Hungary since the 1949 Soviet era constitution, which

established amendment by two-thirds majority in Parliament.

This became signi ﬁcant in 1989, when the Hungarian Repub-

lic used formal constitutional amendment to establish a dem-

ocratic rule of law state. After 2010, with the rise of illiberal

and authoritarian parties in Hungary, these same procedures

made it easier to constitutionalize provisions that violated the

liberal rule of law reforms of 1989.

The possibility that the Hungarian Constitutional Court

might review illiberal or anti-democratic constitu tional

amendments for their compatibility with the fundamental

principles of the Constitution as a whole was directly

attacked by a formal amendment in 2013, which stated that

“[t]he Constitutional Court may only review the Fundamental

Law and amendment thereof for conformity with the proce-

dural requirements laid down in the Fundamental Law with

respect to its adoption and promulgation.”

Tímea Drinóczi,

Fruszina Gárdos-Orosz, and Zoltan Pozsár-Szentmiklósy, in

their Hungarian Report point out that vague constitutional

provisions concerning fundamental rights invite broad judi-

cial discretion, verging on informal constitutional amend-

ment, that may be challenged by political actors, when they

believe that judges have gone too far.

When the strength of the governing party in Parliament

exceeds two-thirds, as has been the case in Hungary for much

of the past decade, the government may be tempted to amend

the constitution whenever constitutional protections thwart

Ruling of the Constitutional court of 25.6.2002 File No. Pl. US 36/01

(No. 403/2022 Coll.).

Ruling of the Constitutional Court of 26.11.2008 File No. 19/08

(No. 446/2008 Coll.), par. 93.

Article 24(5) of the Fundamental Law adopted by the Fourth Amend-

ment of the Fundamental law in 2013.

500 M. N. S. Sellers

the government’s will. The Constitutional Court of Hungary

afﬁrmed in response that the jus cogens of international law

and common principles of the constitutional heritage limit the

powers of the constituent power, even when this follow s the

Constitution’s formal procedures.

Therefore, although the

Fundamental Law does not contain unamendable clauses and

the Fundamental Law limits the right of the Constitutional

Court to review the amendment of the Constitution, the

Constitutional Cou rt, by way of interpretation, discovered

its inherent power to make substantive review of

amendments to the Fundamental Law in certain cases.

Whether in practice this will restrain the government in any

way, remains to be determined.

16 Italy

The Italian constitution of 1948 was implemented after a

period of fascist rule under a ﬂexible and easily amended

constitution, leading to many of the same abuses currently

evident in Hungary. The post-war Constitution therefore

made amendment more difﬁcult in order to entrench funda-

mental constitutional values against transient majorities. The

new rules required the concurrence of both legislative houses

for amendment in two successive debates, and approval by

popular referendum (Article 138)—unless both chambers

achieve a 2/3 majority at their second reading. The Constitu-

tion also stipulated that, “the republican form of the State shall

not be a matter for constitutional amendment” (Art. 139).

Recent constitutional amendments have limited the death

penalty (Art. 27), regulated the vote of Italian citizens living

abroad (Art. 48), strengthened the equal opportunities of men

and woman (Art. 51) and brought Italy into closer conformity

with the institutions of the European Union (Art. 111). Tania

Groppi, in her report on constitutional amendment in Italy,

observes that the formal amendment procedures set out in

Article 138 of the Italian Constitution have implemented

reforms very effectively when the political will is present,

even in times of considerable opposition and controversy.

There have also been many informal amendments, made

possible by the generality of most constitutional

prescriptions. Electoral Laws or Standing Orders of the

Chambers ﬁll in and clarify when the Constitution is vague.

The broad capacity of Electoral Laws allow broad changes in

the form of government to take place without formal consti-

tutional amendment.

The Constitutional Court of Italy has used constitutional

interpretation to protect universal human rights not expressly

mentioned in the constitutional text. The Court has also

discovered unstated constitutional principles, such as the

secular nature of the State, and an “undeniable core” of

fundamental rights connected to human dignity, despite the

absence of any express reference to such matters in the

Constitutional text. Many of these developments correspond

to broader trends in the European culture of constitutional

law, sometimes justiﬁed by reference to the “open clause’ of

article 11, which allows the ratiﬁcation of European Treaties

through ordinary legislation, without the need to modify the

text of the Italian Constitution.

At the same time, the Court

has identiﬁed in the “supreme principles of the constitutional

system” a limit to the primacy of European law.

Due to the

lack of consensus and the difﬁculty of amendment, most of

the constitutional change since the Second World War in

Italy has been informal, made by courts and governments in

response to the exigencies of the moment.

17 Japan

The Constitution of Japan was issued on November 3, 1946,

shortly after the end of the Second World War, and came into

effect on May 3 of the following year. This made it the basis

of the post-war settlement, introducing a rigidity even greater

than that of Italy, which came into existence in similar

circumstances. There has never been a formal amendment

of the Japanese Constitution. This makes informal constitu-

tional changes more signiﬁcant made mainly through a strat-

egy known as “Kaishaku Kaiken,” accomp lishing de facto

constitutional change by reinterpreting the constitution. The

foreign origin and rigidity of their constitution has led many

Japanese to view the existing form of government as an alien

imposition, and politicians frequently call for more formal

amendments, particularly in Article 9, which strictly limits

Japan’s recourse to military power.

The Japanese experience raises fundamental questions

about constitutional legitimacy. Does legitimacy depend on

the excellence of the constitution or the procedure which

created it? Japan’s constitution as it exists today substantially

incorporates a draft constitution prepared by the General

Headquarters of Gen. Douglas MacArthur, the Supreme

Commander for the Allied Powers in Japan after the Second

World War. This implemented democracy and respect for

human rights, fundamentally replacing the autocratic

institutions of the Meiji imperial regime. Keigo Komamura

explains in reporting on constitutional amendment in Japan

that some view this Am erican constitution as having

inaugurated an “August Revolution,” bringing new authority

and self-rule to the Japanese people, while reducing the

emperor to a ceremonial role. Others object to what they

Decision 12/2013 (V.24) of the Constitutional Court, Reasoning, [30],

[36]–[37], [43].

Since Decision No. 14/1964.

Since Decision No. 183/1973, and especially in Decision

No. 170/1984.

Formal and Informal Constitutional Amendment 501

characterize as an “imposed constitution,” importing W estern

values to Japan.

The formal procedures of constitutional amendment in

Article 96 of the Japanese Constitution require two-thirds

majorities in both houses of the Nation Diet, follo wed by a

majority of votes in a subsequent national referendum. When

a constitutional amendment is approved in accordance with

these procedures, the Emperor immediately announces its

ofﬁcial promulgation in the name of the people. This proce-

dure combines popular sovereignty with the authority of the

Emperor as the basis of constitutional change, but does not

entirely avoid the underlying reality that the Constitution

itself arose by imposition, after military defeat. The Consti-

tution of Japan begins in its Preamble declaring constitutional

democracy, liberty, and the abhorrence of war as “universal

principles of humanity,” and it is on these principles, rathe r

than popular sovereignty, that the legitimacy of the Japanese

Constitution must ultimately rest.

18 The Netherlands

In the Netherlands, as in all the nations reporting on their

constitutions at the World Congress of Comparative Law in

Fukuoka, informal constitutional change has taken place

much more frequently than formal amendment. That should

not be surprising given the deliberately general and open

texture of most well-drafted constitutions, and the unavoid-

able alterations required by changing circumstances in

evolving societies. The current Constitution of the

Netherlands ﬁrst came into existence in 1814, and therefore

represents one of the world’s most stable constitutional

polities. This happened in part with the aid of gradual consti-

tutional change, both formal and informal, over many years.

Reijer Passchier in his report on the Constitution of the

Netherlands stresses that informal processes of constitutional

change have been much more important than formal consti-

tutional revision and that therefore informal change should be

the central concern of anyone who seeks to understand Dutch

constitutional development. This arises in part from the rela-

tive difﬁculty of formal constitutional changes in the

Netherlands, which requires two legislative stages, with gen-

eral elections for the lower house in between. The ﬁrst

reading requires a simple maj ority of both houses of parlia-

ment. The second reading requires a qualiﬁed two-thirds

majority in both houses and the assent of the government.

This does not frequently occur.

Passchier advocates what he calls an “historical-

institutionalist” view of constitutional change, accepting the

authority of formal constitutiona l norms, while recognizing

that institutional practices and understandings of these norms

may evolve over time. Thus, the master constitutional text

retains its authority, but the institutional context in which the

constitution is embedded can adjust to changing

circumstances. This can lead to reinterpretation or to the

development of new convent ions to govern the application

of constitutional principles in practice. The text does not

change, but its meaning changes, or actors come to feel

bound by standards that are not explicit in the text.

19 Poland

Poland offers another example of a constitutional state in

which the rule of the law and the stability of constitutional

rights has been challenged by the forces of populism. Poland

has relatively rigid formal procedures of constitu tional

amendment, designed to protect the rights of the people and

the humanistic orientation of the state. The introduction to the

Constitution of Poland refers to the “inherent dignity of the

person, his or her right to freedom, the obligatio n of solidarity

with others, and respect for these principles as the

unshakeable foundation of the Republic of Poland.”

Janusz Trzinski and Michal Szwast in their report on the

Constitution of Poland identify the development of a new

mechanism of extra-constitutional change of the constitu-

tional order. Thwarted by courts and other institutions in

the pursuit of unconstitutional political aims, but without

sufﬁcient numbers to effectuate formal amendment, the dom-

inant party in the legislature has used ordinary legislation to

alter the laws governing the operation of key state bodies, in

order to render them ineffectual in fulﬁlling their duty of

protecting constitutional norms. For example, numerous

amendments of the Constitutional Tribunal Act have made

it impossible for the Court to function or to exercise its

powers normally, and prevented the review of unconstitu-

tional legislation.

Such interventions by the legislature may be seen as

simple violations of the rule of law, contrary to formal con-

stitutional norms. The innovation of the Polish technique

arises from its oblique effect. By incapacitating public

authorities, legislation on capacity and procedure renders

the formal constitution inoperative, and substit utes a new

legislative constitution, superseding the formal institutions

of the state. This challenge to the rule of law is more subtle

than the open subversion of the rule of law in Hungary, or the

constitutionally entrenched extra-legal role of the party in

China, but it has a similar e ffect. By removing the possibility

of constitutional review and enforcement, the government

renders the existing constitution inoperable and opens the

door to less restrictive infor mal constitutional norms.

20 Romania

The 1989 Constitution of Romania has a comparatively rigid

structure of formal constitutional amendment, requiring

two-thirds majorities in both houses of parliament, followed

502 M. N. S. Sellers

by a referendum. There is also a secure and assertive Consti-

tutional Court. Thus, most constitutional change has been

informal and has taken place with the acceptance of even at

the initiative of the Constitutional Court. The Constitutional

Court is also the ﬁrst and last authority to give an opinion on

formal constitutional changes. This power, conveyed in

Article 146 of the Constitution, provides that the popular

referendum required for constitutional amendment may not

take place until the Court has given its approval.

Elena-Simina Tӑnӑsescu and Bianca Selejan-Guţan in

their report on constitutional amendment in Romania note

that the most striking examples of informal constitutional

revision by the Romanian Constitutional Court have been

the Court’s efforts to constitutionalise its own new

competences, introduced by law. The powers in question

were introduced by the organic law of the Court in 2010

concerning review of Acts of Parliament. In a decision

made in 2012, the court concluded that Parliament’s legisla-

tive power concerning the Court’s powers only extended to

increasing the Court’s powers but not to removing powers

already conferred by law. These now had a “constitutional

rank,” despite the silence of the constitution on such matters.

The experience of Romania illust rates the general propo-

sition that the mere existence of a Constitutional Court does

not guarant ee protection against unconstitutional revisions.

Most informal revisions of the Romanian constitution have

taken place with the blessing of the Constitutional Court. In

addition to the question of extending its own jurisdiction, the

Court has been remarkably complacent in the face of legisla-

tive incursions against fundamental rights, such as the legis-

lative ban on same-sex marriage, and popular initiatives to

entrench the marriage ban in the Constitution. These may to

some extent reﬂect a desire to avoid defying public opinion in

emotive cases, even to protect fundamental human rights.

21 Singapore

Singapore has been ruled by one party with an overwhelming

majority in Parliament since its independence in 1965. This

majority has never fallen below the two-thirds threshold

required for constitutional amendment, making the Constitu-

tion, for the most part, an instrument, rather than a limitation,

on the ruling party. The primary aim and main source of

legitimacy of the Singapore government since its inception

has been economic growth, not democratic or constitutional

guarantees, and the government has altered the constitution

whenever the court has exhibited a desire to constrain it, as in

the Chng Suan Tze decision in 1989, concerning the deten-

tion of suspected dissidents.

Constitutional change in Singapore has generally been

formal, in light of the dominance of a single political party.

Swati Jhaveri in her report on the Constitution of Singapore

observes that this has given rise to an instrumental rather than

a normative view of the Constitution and constitutional

amendment, as a tool for political consolidation and change,

rather than a limit on government power. The aim has been to

achieve a sense of stability in politics, which is heavily

managed, rather than seeking to protect fundamental rights,

or limit the powers of the government. The executive power

in Singapore has guided the process from the beginning, and

never shared its primacy with other organs of the State.

This executive-led process prevented the constitution

itself from playing a signiﬁcant role in conferring legitimacy

on government. De facto change in the actual constitution of

Singapore always precedes alterations in the de jure constitu-

tion, which simply reﬂects political realities that develop

outside the formal constitutional framework. Singapore’s

relative stability and ﬁnancial success under the more-or-

less untrammeled rule of a single powerful man and his

family has avoided too much scrutiny of the largely irrelevant

formal constitution. This well illustrates Pope’s dictum that

good administration can overcome poor forms of govern-

ment, more often than good constitutional structures can

overcome the corruption of rulers or—what is worse—the

corruption of the people themselves.

22 Slovak Republic

The Slovak Constitution shares with many other constitutions

and particularly with post-Soviet and post-imperial

constitutions, the imbedded desire to overcome and prevent

the worst offenses of a preceding regime. More speciﬁcally,

the Constitution seeks self-consciously to entrench and per-

petuate fundamental liberal values, including universal

human rights, the rule of law, and democratic participation

of citizens in their national government and politics. At the

same time, the National Council of the Slovak Republic (the

parliament) has the power to approve the Constitution and

constitutional laws, as well as their amendment. The task of

the constitution and the Constitutional Court is to reconcile

this constituent power of the National Council with the values

and purposes it exists to serve.

JánSvák and Boris Balog observe in their report on the

Slovak Republic that when the current Constitution was

adopted by the Slovak National Council in 1992, the measure

was not formally described as a constitutional law. Neverthe-

less, it has been univer sally accepted as such. Moreover,

although the constitution contains no explicit derogatory

clause, the National Council of the Slovak Republic has

approved constitutional amendments since 1998, in the

“For forms of government let fools contest. Whate’er is best

administer’d is best” Alexander Pope, Essay on Man, Epistle

3.1.303-4 (1733).

Formal and Informal Constitutional Amendment 503

form of constitutional laws—or “ amending constitutional

laws”—when they directly amend the Constitution. None of

this is formally contem plated by the constitutional text, but it

ﬁts the over-all scheme well, reﬂects Slovak constitutional

tradition, and is necessary for the smooth execution of the

constitutional structure as a whole.

This relationship between formal and informal constitu-

tional institutions reﬂects the importance of underlying con-

stitutional values in any successful constitutional regime, and

the necessary constitutional principles that support these

values and give the constitution the coherence and legitimacy

that make it effective in practice. Fundamental constitutional

values may be explicit or mere ly implied in the constitutional

text, but they animate the whole and constitute the ultimate

constitution of the state. To disregard or change these under-

lying values and principles to overturn the Constitution in

toto. The Slovak Constitutional Court has been quite defer-

ential in policing these boundaries, which has weakened the

liberal and democratic vitality of the State.

23 Switzerland

Switzerland is, with the Netherlands and the United States,

one of the wor ld’s oldest federal, liberal, and democratic

republics, and provided an inspiration for the development

of more scientiﬁc constitutional government throughout the

world. Paradoxically, the very antiquity and self-conﬁdence

of these ancient republics also makes their written

constitutions more quirky an d antiquated than more recently

drafted forms of government. But their supporting constitu-

tional culture is correspondingly deeper, and therefore more

able to transcend any weaknesses and infelicities in the

formal constitutional order.

Luc Gonin, in his report on constitutional amendment in

Switzerland, points out that Switzerland’s constitution

provides two primary routes towards formal constitutional

revision, through popular initiative or representative democ-

racy. Popular initiatives have always played a large part in all

aspects of Swiss political life, and in this case require

100,000 signatures within 18 months to rais e a question for

approval by the people and Cantons of Switzerland. The two

Councils and the Federal Assembly may also propose

revisions (Art. 193§1) or decree them in the case of partial

revisions by the Federal Assembly (Art. 194§1). The require-

ment of majority approval both by a majority of the people

and by a majority of the Cantons combines the democratic

and the federal principles, without erecting too signiﬁcant a

barrier to constitutional change.

Switzerland’s ancient and very democratic constitutional

order also illustrates the growing power of international law

and international inst itutions in constitutional law and consti-

tutional interpretation. Art. 190 of the Constitution of

Switzerland explicitly requires the Federal Court to apply

national laws and international treaties without review, but

does not specify which should prevail in case of a conﬂict

between the two. The Court now ﬁrmly asserts the primacy of

international law over federal laws.

The same applies to the

Constitution. The Supreme Court’s role in reconciling

national law with international law may constitute a form of

informal amendment , particularly where international and

constitutional context is used to redeﬁne the constitutional

norm.

24 United States of America

The United States Constitution became effective in 1789,

opening the modern era of written constitutions and setting

a very high bar for formal amendment: two-thirds vote in

both houses of the legislature, follow ed by a three-quarters

vote of the States.

This corresponds closely to the standard

set for ratiﬁcation of the original Constitution, and pays due

respect both to Federal and to State power, but is a very strict

standard making formal amendment an exceptionally rare

occurrence in the history of the United States. As in the

approval of the original federal constitution of 1787, there

is no recourse to a referendum or plebiscite, procedures

strongly disapproved by the founders of the American

republic.

Richard Kay, in his report on formal and informal amend-

ment in the Constitution of the United States, observes that

the very difﬁcult procedure for amendment of the United

States Constitution has been offset by the broad and general

terms of the document itself. The Fourteenth Amendment in

particular, passed after the American Civil War in the

mid-nineteenth century, provides that no state shall “deprive

any person of life, liberty, or property, without due process of

law; nor deny any person within its jurisdiction the equal

protection of the laws” and that Congress shall have the

power to enforce this article “by appropriate legi slation.”

This very broad standard establishes basic constitutional

values and principles, with an exceptionally wide range of

possible legislative and judicial applications.

Very signiﬁcantly, at the outset of constitutional govern-

ment in the United States, Chief Justice John Marshall noted

on behalf of the Supreme Court in the famous case of

Marbury v. Madison

that “it is emphatically the province

and duty of the judicial department to say what the law is.”

In its decision 139 I. 16.

See, Decision 142 II 35, dated November 26, 2015, in which the

Supreme Court clariﬁed how it would resolve a normative conﬂict

between national and international law.

Constitution of the United States, Article V.

Marbury v. Madison, 5 U.S. 137 (2003).

504 M. N. S. Sellers

This established the principle of judicial review by which

American courts and particularly the United States Supreme

Court must disallow laws repugnant to the Constitution of the

United States. This decision and its understanding of the

Constitution identiﬁes a formal and deﬁnitive authority for

certifying “informal” constitutional changes, giving them a

formal warrant in the Constitution itself, without requiring

any modiﬁcation of the text, Such changes present them-

selves as no more than a better understanding of the existing

document, superseding erroneous readings of the past. Quite

often this assertion is actually true—or at least accepted as

true by the government and people of the United States of

America.

25 Challenges

Accounts of constitutional amendment and constitutional

change gathered from many different nations as they exist

today remind us that we live at a moment of constitutional

peril. The general trend of constitutional government in many

states for the past decade has been away from constitutional

justice, liberty, and the rule of law towards greater oppres-

sion, corruption, violence, and arbitrary action. Russia, Tur-

key, China, Egypt, Hungary, Poland, the United Kingdom

and the United States are among the most celebrated

examples of nations that beginning from completely different

histories and stages of constitutional development have all in

recent years seen a steep degradation of their constitutional

cultures.

Lawyers and scholars everywhere have considered

whether some speciﬁc constitutional inﬁrmity has

contributed to this decline, and which amendments or other

constitutional changes might do the most to protect liberty

and justice against the inroads of corruption and creeping

autocracy. The fault, however, seems to lie less in the

structures of the constitutions themselves than in changes of

public culture, education, and the formation of public opin-

ion. Television, the internet, and the dissemination of infor-

mation on-line make public opinion highly manipulable by

self-interested governments, oligarchs, and wealthy

corporations, to the detriment of the public good. This

undermines the democratic elements of modern constitu-

tional governance.

The absence of an obvious formal or structural remedy to

the decline of constitutional democracy in the early twenty-

ﬁrst century reminds us of the important role that informal

and cultural constitutional chan ge have always played in the

development of constitutional justice. If the origin of all law

and justice is, as Cicero long ago observed, the love and care

we owe our fellow human beings, then the purity of this

source of law and justice depends on good faith, the bona

ﬁdes that we owe to the republic in fulﬁlling our civic and

constitutional duties. While constitutions can declare the

importance of liberty, justice, and good faith, they cannot

instill these virtues directly in the people. To do so is the duty

of real human beings—and above all the scholars and

practitioners of constitutional law, who teach the public

how to understand and venerate their constitutions,

governments, and duties to each other, and to the laws.

26 Principles and Techniques

Giuseppe Franco Ferrari has usefully observed that constitu-

tionalism as we know it is the product of the liberal tradition,

establishing the government of laws, founded on the consent

of the people, through such basic principles as the protection

of the rights of man and citizen, the separation of powers, the

rule of law, and the constitutional review of statutes codiﬁed

in a higher law. These fundamental constitutional principles

and techniques are necessary and fundamental because gov-

ernment without them is invariably unjust and therefore at

odds with the ﬁrst purpose of the constitutional project.

Constitutionalism begins by establishing provisions bind-

ing both on citizens and on public authorities. Constitutions

establish the aims of the State and the principles and

techniques necessary to accomplish these aims. Formally

conﬁrming this social framework in written form gives the

political community the basis to advance the public good.

The beneﬁts conveyed by deliberately designed and written

constitutions are considerable, but this raises the problem of

formal and informal amendment. Societies and nations can-

not and should not be static in all aspects of their fundamental

laws and institutions. They should aspire to improve, and

most in any case respon d to changing circumstances and

ideas. Amendment is therefore a necessary and inevitable

aspect of every constitution whether this is openly acknowl-

edged or no t.

The principles and techniques of constitutional govern-

ment are two aspects of the same project. Con stitutional

principles declare the aims, values, and core ideology that

the constitution seeks to serve. Constitutional techniques

establish social and political structures that can accomplish

and advance these aims. Both are necessary. Neither can be

effective without the other. Constitutional principles maintain

the purposive element in the enterprise. Constitutional

techniques guide deliberation and establish the institutions

that implement the policies of the State. The applicable

principles and techniques are embodied in the Constitution

itself, but must also reﬂect the inherent requirements of the

constitutional project. Many constitutional principles and

constitutional techniques are shared by all well-ordered

constitutions, regulating the resort to constitutional

change—by formal, informal, customary, or even by uncon-

stitutional amendment, when circumstances require it.

Formal and Informal Constitutional Amendment 505

27 Conclusion

Reports from constitutional law scholars gathered from many

jurisdictions throughout the world remind us that constitu-

tional amendment and constitutional change take place in

many ways. These can be formal, informal, cultural, and

even at times illegal, in violation of the established constitu-

tion itself. The unifying force in all such forms of constitu-

tional change or amendment is their claim to advance justice.

No constitutional amendment or constitutional change takes

place without its proponents claiming that the change will

advance justice. They do so because constitutional amend-

ment is not legitimate or justiﬁed unless it makes the consti-

tution better, and the sole standard of constitutional value is

the constitution’s effectiveness in realizing justice in fact.

Constitutionalism is the project of creating or improving

the constitutions of the world so that they serve their declared

purpose better. Constitut ional amendment and constitutional

change are the processes by which constitutionalists attempt

to do so in practice. The ﬁrst commitment of constitutional-

ism is to establish the rule of law , minimizing the arbitrary

power of public ofﬁcials, to guide them towards the public

good. Citizens protected in this way enjoy “liberty”, which is

to say protection against the domination or arbitrary power of

those who would oppress them. The procedural checks and

balances of constitutions everywhere exist to restrain arbi-

trary power in all forms of public and private authority.

The constitutional search for greater justice is the

animating principle that guides or should guide constitutional

amendment and constitutional change whenever and wher-

ever it occurs. We all share a primary duty to implement,

interpret, enforce, and amend our constitutions in the light of

justice, liberty, and the rule of law, whatever our other

afﬁnities may be. The fundamental principles of justice,

once expressed, are hard to forget. Plant the seeds of justice

in the constitution if you can, or in the legal or national

culture, and eventually they will grow. Seek to establish

justice, which is the purpose of constitutional law, or at

least amend and interpret the constitution in the direction of

greater justice, whenever you can. Scholars of law in every

jurisdiction share or shoul d share these same noble purposes.

Ita ius esto.

References

Adams J (1787) Defense of the constitutions of government of the

United States of America, vol I. London, Dilly

Adams J (1788) Defense of the constitutions of government of the

United States of America. London, Dilly

Buckley JD (2012) Natural law and the antislavery constitutional tradi-

tion. Cambridge, Cambridge University Press

Contiades X (2013) Engineering constitutional change: a comparative

perspective on Europe, Canada and the USA. Oxford

de Secondat C baron de la Brède et de Montesquieu (1748) De l’Esprit

des Lois. Geneva, Barillot

Reidy DA, Sellers MNS (2005) Universal human rights: moral order in a

divided world. Lanham, Rawman and Littleﬁeld

Albert R, Contiades X, Fotiadou A (2017) The foundations and

traditions of constitutional amendment. Oxford, Hart

Roznai Y (2017) Unconstitutional constitutional amendments: the limits

of amendment powers. Oxford, Oxford University Press

Sellers MNS (2003) Republican legal theory: the history, constitution,

and purposes of law in a free state. Basingstoke, Macmillan

Sellers MNS, Tomaszewski T (2010) The rule of law in comparative

perspective. Dordrecht, Springer

Silkenat J, Hickey J, Barenboim PD (2014) The legal doctrines of the

rule of law and the legal state. Dordrecht, Springer

506 M. N. S. Sellers