Comparing Constitutional Change in European Union Member States: In Search of a Theory

Abstract

This article explores the under-researched issue of how constitutional change is brought about in modern democracies. Despite the fundamental importance of constitutions, we know surprisingly little about whether constitutional change is achieved by changing the explicit wording of the constitutional document, or by way of changing the meaning of the constitution while leaving the constitutional text unaltered. Which is the more common method and what variations in the use of these different methods are there in democratic political systems? This study systematically compares the use of explicit and implicit constitutional change in European Union (EU) Member States. The results show that implicit constitutional change is the more frequently used method, but also reveal substantial differences between EU countries. The article closes by discussing the road towards a theory of constitutional change. It does so by presenting five testable propositions that could lay the foundation for a theory of constitutional change.

Constitutional change in light of European Union membership: trends and trajectories in the new member states

“…When looking at the general literature on constitutional change, a main finding of previous studies is that both modes of constitutional change occur regularly in liberal democracies (Behnke and Benz 2009;Contiades 2013;Karlsson 2014;Oliver and Fusaro 2011;Voigt 1999a). As we take a closer look at previous research on constitutional change in general, it is striking that a clear majority of all studies have looked exclusively at explicit change, seeking to describe and explain constitutional amendment.…”

“…The fact that constitutional change can be brought about in two different ways has been recognised for a long time (Jellinek, 1906), and both kinds of constitutional change occur regularly in modern democracies (Behnke and Benz, 2009;Karlsson 2014;Voigt, 1999a;Voigt, 1999b). This, however, does not imply that we should abandon the distinction between constitutional amendment and constitutional alteration, or for that matter, between constitutional law and ordinary law.…”

“…A few examples of how the coding was done may be instructive (see also Karlsson 2014;2016). Consider variable 1, where we are interested in determining how the constitutional grounds for membership have been regulated in the various member states.…”

Explaining constitutional change: making sense of cross-national variation among European Union member states

“…Constitutional change has emerged as a prominent topic in the research on constitutional politics and comparative law. In a number of recent studies scholars have compared developments in liberal democracies attempting to capture differences and similarities in how constitutional change is brought about (Contiades 2013;Karlsson 2014;Oliver and Fusaro 2011). As these and previous research contributions show, there are in fact two completely different methods for achieving constitutional change in democratic political systems (cf.…”