This book examines the problem of constitutional change in times of crisis. Divided into five main parts, it both explores and interrogates how public law manages change in periods of extraordinary pressure on the constitution. In Part I, "Emergency, Exception and Normalcy," the contributors discuss the practices and methods that could be used to help legitimize the use of emergency powers without compromising the constitutional principles that were created during a period of normalcy. In Part II, "Terrorism and Warfare," the contributors assess how constitutions are interpreted during times of war, focusing on the tension between individual rights and safety. Part III, "Public Health, Financial and Economic Crises," considers how constitutions change in response to crises that are neither political in the conventional sense nor violent, which also complicates how we evaluate constitutional resilience in times of stress. Part IV, "Constitutionalism for Divided Societies," then investigates the pressure on constitutions designed to govern diverse, multi-national populations, and how constitutional structures can facilitate stability and balance in these states. Part V, titled "Constitution-Making and Constitutional Change," highlights how constitutions are transformed or created anew during periods of tension. The book concludes with a rich contextual discussion of the pressing challenges facing constitutions in moments of extreme pressure. Chapter "Public Health Emergencies and Constitutionalism Before COVID-19: Between the National and the International" is available open access under a Creative Commons Attribution 4.0 International License via link.springer.com.

This book examines the subject of constitutional unamendability from comparative, doctrinal, empirical, historical, political and theoretical perspectives. It explores and evaluates the legitimacy of unamendability in the various forms that exist in constitutional democracies. Modern constitutionalism has given rise to a paradox: can a constitutional amendment be unconstitutional? Today it is normatively contested but descriptively undeniable that a constitutional amendment-one that respects the formal procedures of textual alteration laid down in the constitutional text-may be invalidated for violating either a written or unwritten constitutional norm. This phenomenon of an unconstitutional constitutional amendment traces its political foundations to France and the United States, its doctrinal origins to Germany, and it has migrated in some form to all corners of the democratic world. One can trace this paradox to the concept of constitutional unamendability. Constitutional unamendability can be understood as a formally entrenched provision(s) or an informally entrenched norm that prohibits an alteration or violation of that provision or norm. An unamendable constitutional provision is impervious to formal amendment, even with supermajority or even unanimous agreement from the political actors whose consent is required to alter the constitutional text. Whether or not it is enforced, and also by whom, this prohibition raises fundamental questions implicating sovereignty, legitimacy, democracy and the rule of law.

Despite the importance of second chambers to the success of constitutional democracies around the world, today many fundamental questions about bicameralism remain understudied and undertheorized. What makes bicameral reform so difficult? Why choose bicameralism over unicameralism? What are the constitutional values of bicameralism? This innovative book addresses these questions and many more from comparative, doctrinal, empirical, historical and theoretical perspectives. Featuring contributions from leading and emerging scholars in the field, this book provides a timely account of the tensions between bicameralism and its reform, demonstrating for the first time how this relates to the protection of liberal democracy and the rule of law. Contributors analyse the pressures that contemporary constitutional politics exert on bicameralism in an array of countries and legal systems, including the complex relationships between the EU and national second chambers. Scholars and students of comparative and constitutional law, legislative studies and political science will find this book an invaluable resource. Policymakers at national and EU levels, parliamentarians and others working closely with parliamentary institutions will also find it insightful.

There is growing interest in constitutional amendment from a comparative perspective. Comparative constitutional amendment is the study of how constitutions change through formal and informal means, including alteration, revision, evolution, interpretation, replacement and revolution. The field invites scholars to draw insights about constitutional change across borders and cultures, to uncover the motivations behind constitutional change, to theorise best practices, and to identify the theoretical underpinnings of constitutional change. This volume is designed to guide the emergence of comparative constitutional amendment as a distinct field of study in public law. Much of the recent scholarship in the field has been written by the scholars assembled in this volume. This book, like the field it hopes to shape, is not comparative alone; it is also doctrinal, historical and theoretical, and therefore offers a multiplicity of perspectives on a subject about which much remains to be written. This book aspires to be the first to address comprehensively the new dimensions of the study of constitutional amendment, and will become a reference point for all scholars working on the subject. The volume covers all of the topics where innovative work is being done, such as the notion of the people, the trend of empirical quantitative approaches to constitutional change, unamendability, sunrise clauses, constitutional referenda, the conventional divide between constituent and constituted powers, among other important subjects. It creates a dialogue that cuts through these innovative conceptualisations and highlights scholarly disagreement and, in so doing, puts ideas to the test. The volume therefore captures the fierce ongoing debates on the relevant topics, it reveals the current trends and contested issues, and it offers a variety of arguments elaborated by prominent experts in the field. It will open the way for further dialogue.

It is well known that the US Constitution has been amended twenty-seven times since its creation in 1787, but that number does not reflect the true extent of constitutional change in America. Although the Constitution is globally recognized as a written text, it consists also of unwritten rules and principles that are just as important, such as precedents, customs, traditions, norms, presuppositions, and more. These, too, have been amended, but how does that process work? In this book, leading scholars of law, history, philosophy, and political science consider the many theoretical, conceptual, and practical dimensions of what it means to amend America's 'unwritten Constitution': how to change the rules, who may legitimately do it, why leaders may find it politically expedient to enact written instead of unwritten amendments, and whether anything is lost by changing the constitution without a codified constitutional amendment.

This innovative book blends constitutional theory with real-life political practice to explore the impact of codifying constitutional amendments on the operation of the constitution in relation to democracy, the rule of law, and the separation of powers. It draws from comparative, historical, political and theoretical perspectives to answer questions all constitutional designers should ask themselves: - Should the constitution append amendments sequentially to the end of the text? - Should it embed amendments directly into the existing text, with notations about what has been modified and how? - Should it instead insert amendments into the text without indicating at all that any alteration has occurred? The book examines the 3 major models of amendment codification - the appendative, the integrative, and the invisible models - and also shows how some jurisdictions have innovated alternative forms of amendment codification that combine elements of more than 1 model in a unique hybridisation driven by history, law, and politics. Constitutional designers rarely consider where in the constitution to codify amendments once they are ratified. Yet this choice is pivotal to the operation of any constitution. This groundbreaking book shows why the placement of constitutional amendments goes well beyond mere aesthetics. It influences how and whether a people remembers its past, how the constitutional text will be interpreted and by whom, and whether the constitution will be easily accessible to the governed. A global tour of the high stakes of constitution-making, this book features 18 diverse and outstanding scholars from around the world - across Africa, America, Asia and Oceania, and Europe - raising new questions, opening our eyes to new streams of research, and uncovering new possibilities for constitutional design.

This book examines the problem of constitutional change in times of crisis. Divided into five main parts, it both explores and interrogates how public law manages change in periods of extraordinary pressure on the constitution. In Part I, "Emergency, Exception and Normalcy," the contributors discuss the practices and methods that could be used to help legitimize the use of emergency powers without compromising the constitutional principles that were created during a period of normalcy. In Part II, "Terrorism and Warfare," the contributors assess how constitutions are interpreted during times of war, focusing on the tension between individual rights and safety. Part III, "Public Health, Financial and Economic Crises," considers how constitutions change in response to crises that are neither political in the conventional sense nor violent, which also complicates how we evaluate constitutional resilience in times of stress. Part IV, "Constitutionalism for Divided Societies," then investigates the pressure on constitutions designed to govern diverse, multi-national populations, and how constitutional structures can facilitate stability and balance in these states. Part V, titled "Constitution-Making and Constitutional Change," highlights how constitutions are transformed or created anew during periods of tension. The book concludes with a rich contextual discussion of the pressing challenges facing constitutions in moments of extreme pressure. Chapter "Public Health Emergencies and Constitutionalism Before COVID-19: Between the National and the International" is available open access under a Creative Commons Attribution 4.0 International License via link.springer.com.

Constitutions are often seen as the product of the free will of a people exercising their constituent power. This, however, is not always the case, particularly when it comes to 'imposed constitutions'. In recent years there has been renewed interest in the idea of imposition in constitutional design, but the literature does not yet provide a comprehensive resource to understand the meanings, causes and consequences of an imposed constitution. This volume examines the theoretical and practical questions emerging from what scholars have described as an imposed constitution. A diverse group of contributors interrogates the theory, forms and applications of imposed constitutions with the aim of refining our understanding of this variation on constitution-making. Divided into three parts, this book first considers the conceptualization of imposed constitutions, suggesting definitions, or corrections to the definition, of what exactly an imposed constitution is. The contributors then go on to explore the various ways in which constitutions are, and can be, imposed. The collection concludes by considering imposed constitutions that are currently in place in a number of polities worldwide, problematizing the consequences their imposition has caused. Cases are drawn from a broad range of countries with examples at both the national and supranational level. This book addresses some of the most important issues discussed in contemporary constitutional law: the relationship between constituent and constituted power, the source of constitutional legitimacy, the challenge of foreign and expert intervention and the role of comparative constitutional studies in constitution-making. The volume will be a valuable resource for those interested in the phenomenon of imposed constitutionalism as well as anyone interested in the current trends in the study of comparative constitutional law.

In this volume marking the Sesquicentennial of Confederation in Canada, leading scholars and jurists discuss the evolution of the Canadian Constitution since the British North America Act 1867; the role of the Supreme Court in interpreting the Constitution as a 'living tree' capable of application to new legal issues; and the growing influence of both the Constitution, with its entrenched Charter of Rights and Freedoms, and the decisions of the Court on other constitutional courts dealing with a wide range of issues pertaining to human rights and democratic government. The contributors assess how the Canadian Constitution accommodates the cultural diversity of the country's territories and peoples while ensuring the universal applicability of its provisions; the role of the Court in interpreting and applying the Constitution; and the growing global influence of the Constitution and decisions of the Court on legislatures and courts in other countries.

This book examines the subject of constitutional unamendability from comparative, doctrinal, empirical, historical, political and theoretical perspectives. It explores and evaluates the legitimacy of unamendability in the various forms that exist in constitutional democracies. Modern constitutionalism has given rise to a paradox: can a constitutional amendment be unconstitutional? Today it is normatively contested but descriptively undeniable that a constitutional amendment-one that respects the formal procedures of textual alteration laid down in the constitutional text-may be invalidated for violating either a written or unwritten constitutional norm. This phenomenon of an unconstitutional constitutional amendment traces its political foundations to France and the United States, its doctrinal origins to Germany, and it has migrated in some form to all corners of the democratic world. One can trace this paradox to the concept of constitutional unamendability. Constitutional unamendability can be understood as a formally entrenched provision(s) or an informally entrenched norm that prohibits an alteration or violation of that provision or norm. An unamendable constitutional provision is impervious to formal amendment, even with supermajority or even unanimous agreement from the political actors whose consent is required to alter the constitutional text. Whether or not it is enforced, and also by whom, this prohibition raises fundamental questions implicating sovereignty, legitimacy, democracy and the rule of law.

In this volume marking the Sesquicentennial of Confederation in Canada, leading scholars and jurists discuss the evolution of the Canadian Constitution since the British North America Act 1867; the role of the Supreme Court in interpreting the Constitution as a 'living tree' capable of application to new legal issues; and the growing influence of both the Constitution, with its entrenched Charter of Rights and Freedoms, and the decisions of the Court on other constitutional courts dealing with a wide range of issues pertaining to human rights and democratic government. The contributors assess how the Canadian Constitution accommodates the cultural diversity of the country's territories and peoples while ensuring the universal applicability of its provisions; the role of the Court in interpreting and applying the Constitution; and the growing global influence of the Constitution and decisions of the Court on legislatures and courts in other countries.

Constitutions are often seen as the product of the free will of a people exercising their constituent power. This, however, is not always the case, particularly when it comes to 'imposed constitutions'. In recent years there has been renewed interest in the idea of imposition in constitutional design, but the literature does not yet provide a comprehensive resource to understand the meanings, causes and consequences of an imposed constitution. This volume examines the theoretical and practical questions emerging from what scholars have described as an imposed constitution. A diverse group of contributors interrogates the theory, forms and applications of imposed constitutions with the aim of refining our understanding of this variation on constitution-making. Divided into three parts, this book first considers the conceptualization of imposed constitutions, suggesting definitions, or corrections to the definition, of what exactly an imposed constitution is. The contributors then go on to explore the various ways in which constitutions are, and can be, imposed. The collection concludes by considering imposed constitutions that are currently in place in a number of polities worldwide, problematizing the consequences their imposition has caused. Cases are drawn from a broad range of countries with examples at both the national and supranational level. This book addresses some of the most important issues discussed in contemporary constitutional law: the relationship between constituent and constituted power, the source of constitutional legitimacy, the challenge of foreign and expert intervention and the role of comparative constitutional studies in constitution-making. The volume will be a valuable resource for those interested in the phenomenon of imposed constitutionalism as well as anyone interested in the current trends in the study of comparative constitutional law.

Constitutional Amendments: Making, Breaking, and Changing Constitutions is both a roadmap for navigating the intellectual universe of constitutional amendments and a blueprint for building and improving the rules of constitutional change. Drawing from dozens of constitutions in every region of the world, this book blends theory with practice to answer two all-important questions: what is an amendment and how should constitutional designers structure the procedures of constitutional change? The first matters now more than ever. Reformers are exploiting the rules of constitutional amendment, testing the limits of legal constraint, undermining the norms of democratic government, and flouting the constitution as written to create entirely new constitutions that masquerade as ordinary amendments. The second question is central to the performance and endurance of constitutions. Constitutional designers today have virtually no resources to guide them in constructing the rules of amendment, and scholars do not have a clear portrait of the significance of amendment rules in the project of constitutionalism. This book shows that no part of a constitution is more important than the procedures we use change it. Amendment rules open a window into the soul of a constitution, exposing its deepest vulnerabilities and revealing its greatest strengths. The codification of amendment rules often at the end of the text proves that last is not always least.

This book examines the interstices among statutory enactment, constitutional convention and formal constitution in which quasi-constitutionality exists. It provides a focal resource that can serve as a point of reference for scholars interested in quasi-constitutionality as a whole, from national and transnational perspectives, expanding on its many forms, functions, and applications with recourse to comparative insights. The book is divided in three main Parts, each of them preceded by a separate critical introduction in which an informed scholar contextualizes the chapters and offers reflections on the themes they develop. The first Part, titled 'Forms', is composed of chapters that address, from a theoretical and comparative perspective, questions related to the recognition of constitutional statutes and quasi-constitutional legislation. The second Part is titled 'Functions', and contains chapters that explore the explanatory power of quasi-constitutionality in different institutional contexts. The third Part, titled 'Applications', considers the ways in which constitutional statutes and quasi-constitutionality operate in relation to particular tensions and debates present in various jurisdictions.

The Oxford Handbook of Caribbean Constitutions offers a detailed and analytical view of the constitutions of the Caribbean region, examining the constitutional development of its diverse countries. The Handbook explains the features of the region's constitutions and examines themes emerging from the Caribbean's experience with constitutional interpretation and reform. Beginning with a Foreword from the former President of the Caribbean Court of Justice and an Introduction by the lead editor, Richard Albert, the remainder of the book is divided into four parts. Part I, 'Caribbean Constitutions in the World', highlights what is distinctive about the constitutions of the Caribbean. Part II covers the constitutions of the Caribbean in detail, offering a rich analysis of the constitutional history, design, controversies, and future challenges in each country or group of countries. Each chapter in this section addresses topics such as the impact of key historical and political events on the constitutional landscape for the jurisdiction, a systematic account of the interaction between the legislature and the executive, the civil service, the electoral system, and the independence of the judiciary. Part III addresses fundamental rights debates and developments in the region, including the death penalty and socio-economic rights. Finally, Part IV features critical reflections on the challenges and prospects for the region, including the work of the Caribbean Court of Justice and the future of constitutional reform. This is the first book of its kind, bringing together in a single volume a comprehensive review of the constitutional development of the entire Caribbean region, from the Bahamas in the north to Guyana and Suriname in South America, and all the islands in between. While written in English, the book embraces the linguistic and cultural diversity of the region, and covers the Anglophone Caribbean as well as the Spanish-, French-, and Dutch-speaking Caribbean countries.

The possibility of democracy-enhancing uses and anti-democratic abuses of referendums reveals a paradox: mechanisms of democracy can be exploited to do violence to the basic principles of democracy. The Limits and Legitimacy of Referendums seeks to identify standards we might use to assess the democratic legitimacy of a referendum when we cannot rely on the norms of traditional liberal democracy. This innovative book explores how referendums manage the tension between liberalism and democracy, and whether this device holds promise for reconciling these two commitments. A range of scholars from around the world expose how referendums may be abused on one hand to achieve short-term political or even personal gains, and how, on the other, they may aspire to reflect the best traditions of deliberative, innovative, democracy-enhancing popular decision-making. Structured around three big questions, this book seeks to identify what makes a referendum legitimate. First, why have referendums on issues of fundamental political importance become so frequent around the world? Second, who are - or who should be - the people that make decisions about a political community's future? And third, are referendums an effective and reliable mechanism of popular sovereignty or democratic choice? These essays - written for scholars, public lawyers, political actors and citizens - bring together diverse perspectives on referendums, constitutionalism, liberalism and democracy in ways that challenge the conventional wisdom, prompt new answers to enduring questions, and urge reconsideration of how we evaluate the legitimacy of referendums.

No province in Canada has codified a written constitution, and whether Quebec should be the first remains a controversial question. A Written Constitution for Quebec? enters into the debate, drawing a roadmap through the legal, political, and constitutional terrain of the issue. Leading scholars each take their own position in the debate, examining the issue from various sides and exploring the forms and limits of a codified Quebec constitution by asking whether Quebec should adopt a written constitution, how the province might go about it, and what such a document might achieve. Along with a comprehensive introduction to constitutional codification and how it relates to Quebec, the book opens with a proposal for a written constitution, with the analyses that follow expressing a diversity of views on the feasibility and desirability of a written constitution for the province. An array of perspectives through the lenses of Indigenous inclusion and reconciliation, interculturalism and democratic constitutionalism, and insights from other federal and plurinational states - are included in this wide-ranging volume. Taking a doctrinal, historical, theoretical, and comparative approach, A Written Constitution for Quebec? extensively addresses Quebec's constitutional future in Canada.

Founding moments are landmark events that break ties with the ancien regime and lay the foundation for the establishment of a new constitutional order. They are often radically disruptive episodes in the life of a state. They reshape national law, reset political relationships, establish future power structures, and influence happenings in neighbouring countries. This edited collection brings together leading and emerging scholars to theorise the phenomenon of a founding moment. What is a founding moment? When does the 'founding' process begin and when does it end? Is a founding moment possible without yielding a new constitution? Can a founding moment lead to a partial or incomplete transformation? And should the state be guided by the intentions of those who orchestrated these momentous breaks from the past? Drawing from constitutions around the world, the authors ask these and other fundamental questions about making and remaking constitutions.

There is growing interest in constitutional amendment from a comparative perspective. Comparative constitutional amendment is the study of how constitutions change through formal and informal means, including alteration, revision, evolution, interpretation, replacement and revolution. The field invites scholars to draw insights about constitutional change across borders and cultures, to uncover the motivations behind constitutional change, to theorise best practices, and to identify the theoretical underpinnings of constitutional change. This volume is designed to guide the emergence of comparative constitutional amendment as a distinct field of study in public law. Much of the recent scholarship in the field has been written by the scholars assembled in this volume. This book, like the field it hopes to shape, is not comparative alone; it is also doctrinal, historical and theoretical, and therefore offers a multiplicity of perspectives on a subject about which much remains to be written. This book aspires to be the first to address comprehensively the new dimensions of the study of constitutional amendment, and will become a reference point for all scholars working on the subject. The volume covers all of the topics where innovative work is being done, such as the notion of the people, the trend of empirical quantitative approaches to constitutional change, unamendability, sunrise clauses, constitutional referenda, the conventional divide between constituent and constituted powers, among other important subjects. It creates a dialogue that cuts through these innovative conceptualisations and highlights scholarly disagreement and, in so doing, puts ideas to the test. The volume therefore captures the fierce ongoing debates on the relevant topics, it reveals the current trends and contested issues, and it offers a variety of arguments elaborated by prominent experts in the field. It will open the way for further dialogue.

The year 2017 marked the 150th anniversary of Confederation and the 1867 Constitution Act. Anniversaries like these are often seized upon as opportunities for retrospection. This volume, by contrast, takes a distinctively forward-looking approach. Featuring essays from both emerging and established scholars, The Canadian Constitution in Transition reflects on the ideas that will shape the development of Canadian constitutional law in the decades to come. Moving beyond the frameworks that previous generations used to organize constitutional thinking, the scholars in this volume highlight new and innovative approaches to perennial problems, and seek new insights on where constitutional law is heading. Featuring fresh scholarship from contributors who will lead the constitutional conversation in the years ahead - and who represent the gender, ethnic, linguistic, and demographic make-up of contemporary Canada - The Canadian Constitution in Transition enriches our understanding of the Constitution of Canada, and uses various methodological approaches to chart the course toward the bicentennial.