The Politics of Constitutional Revision in Eastern Europe
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Description
A constitution, among other things, is a document that is unusually difficult to change. Constitutionalism hinges upon a distinction between the procedures governing ordinary legislation and the more onerous procedural hurdles that must be overcome in order to recast the ground rules of political life. To understand the amending power and its limits, therefore, is to understand the balance of rigidity and flexibility, of permanence and adaptability, that lies at the heart of constitutional government. To institutionalize a constitutional system, as post-Communist drafters from Tirana to Tallinn are now attempting to do, means, among other things, to establish clear rules for, and restraints upon, future constitutional change. A seemingly simple, albeit important, practical question raised by all such attempts is what amending formula should be adopted by these particular countries during this particular phase of their dramatic economic, political, and social transformations. The amending power is not a legal technicality but may, in turn, color the political process as a whole. The answer that we propose and defend in this chapter can be stated succinctly: The procedure for constitutional modification best adapted to Eastern Europe today sets relatively lax conditions for amendment, keeps unamendable provisions to a minimal core of basic rights and institutions, and usually allows the process to be monopolized by parliament, without any obligatory recourse to popular referenda. This arrangement, or so we will argue, should make possible necessary but legally channeled readjustments to swiftly changing circumstances without undermining the already weak legitimacy of democratically accountable assemblies. We urge this approach with some ambivalence. Under better conditions, a sharp split between constitutional law and ordinary law would be preferable. But the peculiar conditions of Eastern Europe do not make this a sensible solution.
Source Publication
Responding to Imperfection: The Theory and Practice of Constitutional Amendment
Source Editors/Authors
Sanford Levinson
Publication Date
1995
Recommended Citation
Holmes, Stephen and Sunstein, Cass R., "The Politics of Constitutional Revision in Eastern Europe" (1995). Faculty Chapters. 814.
https://gretchen.law.nyu.edu/fac-chapt/814
