Constitutional transformation vis-a-vis constitutional amendment

If a Constitution is defined by a basic decision on the allocation of power which is related to the domination exercised by an elite, real constitutional change necessarily concerns the above-mentioned decision.

On the other hand, the movements may be developed on the track of a constitution understood, as Schmitt did, as a positivistic rule which would not entail a change in the allocation of power. The latter would be associated with the idea of a “constitutional amendment” usually expressed (though not always) through a constitutional change following the previous constitutional rules.

A similar distinction has been proposed by Richard Albert (2018; 2019, pp. 76-82) to which the terms “constitutional transformation/revolution” vis­a-vis “constitutional amendment” would basically suit, even in more precise terms. Albert talks about “constitutional dismemberment,” emphasizing that under such a category would be included constitutional changes that are “self­conscious efforts to repudiate the essential characteristics of the constitution and to destroy its foundations” (2018, pp. 2-3) dismantling the basic structure of the constitution while fostering a new foundation grounded on principles contrary to the old constitution. Essentially, “constitutional dismemberments,” in Albert's sense, would not be “constitutional amendments” at all, since under such a concept would be implicit the idea of perfecting the constitution.

As we have seen, Ackerman realized that formal constitutional changes in the American Federal Constitution as happened in the Civil War Amendments (apparently passed under the previous positivistic constitutional rules) may entail an upside-down constitutional change of regime (Ackerman, 1998; see also Marshall, 1987, p. 1340; Balkin and Levinson, 2001, p. 1097). In such cases, within the envelope of a “constitutional amendment” a “constitutional transformation/revolution” had taken place.

American experience, according to Ackerman, also shows episodes, such as the New Deal, or the Civil Rights revolution (Ackerman, 1998, 2014, 2019, pp. 395-397), in which existential decisions on the distribution of power appear without formal constitutional amendment.

Some American scholars, as we shall see, consider that the Bill of Rights included in the ten amendments to the Constitution ratified in 1791 would be a mere extension of the founding (see, for instance, Tushnet, 2009, p. 17) having thus an example within American experience of a formal constitutional amendment that follows the previous amendment procedures and does not affect the core of the existential decisions.

Not far from the account given by the introduction of the American Bill of Rights in 1791 may be mentioned the examples of a brand-new constitution which does not allude to an “existential” constitutional change at all. The latter may be considered to have happened with the total revision of Switzerland's Constitution in 1999-2000. In spite of the fact that the 1999 Swiss constitution­making process led to a new formal constitution, it did not represent a constitutional transformation/revolution, nor a product of the appearance of the constituent power, but a simple “constitutional amendment.”.

Constituent power and the constitution 83 governments to participate in the decision-making process at the federal level (see Fleiner, 2013)]. The different allocation of power between the federation and the cantons provided by the new constitution should not be confused with the reallocation of powers in the existential sense which would signalize the emergence of a constitutional transformation/revolution. One thing is a mere administrative reconfiguration of tasks even provided by constitutional rules, and another thing is the outcome of a clash among different groups from which the constitutional provisions testify to the victory of one group over another.

Something similar to the observations offered on the 1999-2000 Swiss constitution might be stated on the revision of the Finnish constitution which entered into force on March 1, 2000. This constitution entailed some changes concerning the allocation of powers between the Parliament-Government axis and the President but was essentially an operation devoted to unifying the document in a modern and concise fashion (see Ojanen, 2013). Since no structural regime change derived from the 2000 Finnish total revision, we might consider such an experience as a pure constitutional amendment in spite of its apparently comprehensive character. Still, the decision on the body that, for instance, holds the main competencies on foreign policy (whether the Parliament or the Presidency) has no relationship with the basic decision on the allocation of power that defines a constitution in its existential sense.

The point we would like to stress here is that historical experience demonstrates that constitutional transformations (or constitutional dismemberments, according to Albert) are always given in the midst of violent circumstances.

is the trace left by a pro tanto constitutional revolution, though one can be accomplished without the violence we often associate with events described as revolutions in politics.

(Tushnet, 2015b, pp. 642-643)

Indeed, as Schmitt himself recognized (1978), it is possible to foster a constitutional transformation without a formal constitutional breach. However, it is likely to be difficult to elude the mediation of violence in some part of the process. From Tushnet’s approach it is not clear if such a possibility of promoting a constitutional transformation without violence is grounded in some real-world experience or is a normative desideratum. Tushnet, on the other hand, does not provide any historical episode of involvement of the constituent power not accompanied by brute physical violence (on this point see Roznai, 2017, pp. 130-131).

In Ackerman’s book on revolutionary constitutions (2019) among the historical experiences analyzed there, none of them is developed in peaceful

circumstances. In all of them (a list which includes the experiences of India, South-Africa, France, Italy, Poland, Israel, Burma, Iran, and the United States) the constituent moment was preceded or accompanied by wars, big slaughters, confrontations, or, at least, serious troubles in which several people were killed. There would only be the arguable example of Poland (in the case of not assuming the martial law declared by the authoritarian communist government to crush the opposition between December 1981 and July 1983 an act of extreme violence) but Ackerman (2019, pp. 227-281) precisely took the Polish experience as an example of failure of revolutionary constitutionalism.

According to my perspective, in fact, and despite the circular appearance of the following statement, the violence occurring in a scenario of constitutional developments is the factor that allows us to distinguish the constitutional transformation/revolution from the constitutional amendment, that is the distinction between an existential constitutional change (a “self-conscious effort to repudiate the essential characteristics of the previous constitution”) and a mere correction of the constitutional principles in force.

Put in more classical terms, violence is what really allows us to appreciate when the constituent power emerges which is not, as always has been noticed by the European scholarship (see, for instance, Carre de Malberg, 2004, pp. 496-497), a constitutional amendment under the rules established within the constituted power. In that sense, in the French tradition and in other legal cultures in continental Europe, for instance, the power of amending a constitution according to the constitutional rules is differentiated from other ordinary attributions of the legislative, the executive, or the judiciary by defining it as a “derived constituent power” pouvoir constituant derive or “instituted constituent power” pouvoir constituant institue (see Bonnard, 1942, p. 36; Colon-Rios, 2020, pp. 8-17; Gozler, 1999, pp. 10-28; Klein, 1996, p. 5; Roznai, 2017, pp. 113­117). Following my account, notwithstanding, the scenario of constitutional transformation/revolution or “constitutional dismemberment” expresses totally different features from that of the pouvoir constituant institue. It is no wonder that we find the involvement of violence when a constitutional dismemberment takes place since it presupposes a radical reconfiguration of the distribution of power that is only likely to be displayed breaking up the previous constitutional order. The concept of constitution is thus related to the concept of constitutional change and the concept of constituent power, and in all of them violence inhabits.