The Language of Eternity: Judicial Review of the Amending Power in France (or the Absence Thereof)

Baranger, Denis

doi:10.1017/s0021223700018112

Cited by 6 publications

(1 citation statement)

References 3 publications

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“…Constitutional form is like crystal: it is easily broken". 53 But can we state that unamendable clauses force social breach and constitutional replacement? In other words, do they promote constitutional revolutions?…”

Section: 'Hyper-rigidity': Unamendable or Eternal Clauses 1 What mentioning

confidence: 99%

Constitutional Narcissism on the Couch of Psychoanalysis

Botelho¹

2019

European Journal of Law Reform

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Comparing the Portuguese Constitution, which has the longest unamendable clause in the world, with the silence of the Spanish Constitution regarding the language of eternity is indeed a fascinating exercise. Each state's quantum of constitutional change seems to be quite different. One can wonder how two neighbouring states that share a heavy history of right-wing dictatorships and transitioned to democracy forty years ago opted for such dissimilar constitutional designs. However, appearances are often misleading, and an effort should be done to unveil this curious mismatch. Both legal orders suffer from what I call constitutional narcissism, which manifests itself through the urge to perpetuate the foundational constitutional moment. Unamendable clauses (Portugal) and quasi-unamendable clauses (Spain) recast one of constitutional theory's inner paradoxes: Can the constituent power of the people be petrified in one historical constituent decision and constrain future democratic transitions? And what if a volatile contemporary majority seeks to undermine the democratic process and run against the constitutional DNA achievements of the last centuries? Even if the original version of the Portuguese Constitution prohibited several provisions from ever being amended, some of these provisions were indeed modified or removed in the 1989 constitutional amendment process. This occurred without major disagreement from the political organs, scholars, or the judiciary. Therefore, the vexata quaestio remains unanswered: Given their obsolescence or hindrance towards good governance, should entrenchment clauses be eliminated de jure (through a channelled constitutional amendment process, such as the double amendment procedure) or de facto (through a revolutionary process materialized outside of the constitutional framework)?

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Section: 'Hyper-rigidity': Unamendable or Eternal Clauses 1 What mentioning

confidence: 99%

Constitutional Narcissism on the Couch of Psychoanalysis

Botelho¹

2019

European Journal of Law Reform

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New Economic Governance in the European Union: Another Constitutional Battleground?

Amtenbrink

2014

Studies in European Economic Law and Regulation

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The regulatory responses to the global economic and financial crisis and the subsequent euro area sovereign debt crisis raise serious constitutional questions not only at the supranational, European level, but mainly also at the level of the Member States; developments, fuel the long-standing debate on the relationship between the supranational legal order and the (constitutional) legal orders of the Member States, or as Micklitz and Schebesta (The European Court of Justice and the Autonomy of the Member States, 2012) put it 'the challenge […] to define the limits of European integration inward looking'. This may put the much referred to cooperation and dialogue between the national highest (constitutional) courts and the CJEU to the tested yet again, in particular when observing the trend with some national highest (constitutional) courts to 'not only perceive themselves as the ultimate guardian of fundamental rights, but increasingly also more broadly as defenders of a broader constitutional identity.' Hereafter, this contribution commences with a brief flashback to the beginnings of European economic and monetary union (EMU) highlighting that the current judicial discourse on European economic governance and its democratic credentials is anything but new, as it finds its roots in the Treaty on the European Union. This contribution provides an overview of the new legal framework pertaining to economic policy coordination in the euro area and its impact on the national policy sphere is offered, followed by an analysis of a selection of decisions by national highest (constitutional) courts, thereby focusing on their dealing with the constitutional impact of various aspects of the European regulatory response to the crisis. In the concluding section a preliminary answer to the question raised in the title of this contribution is given.

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A new typology of judicial review of legislation

Colón‐Ríos

2014

Glob. Con.

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The distinction between strong and weak judicial review occupies a privileged place in comparative constitutional law. This article argues that it is necessary to generate a new typology that includes two other increasingly infl uential models. The two 'new' models can be identifi ed as 'strong basic structure review' and 'weak basic structure review'. The former, present in some common law countries such as India and Belize, not only provides judges with the ability to strike down legislation that is inconsistent with a particular constitutional provision, but also constitutional amendments incompatible with the principles on which the constitution rests. The latter model, weak basic structure review, currently present in some Latin American countries, also provides judges with the power to strike down ordinary and constitution-amending legislation, but gives 'the people', acting through a constituent assembly, the fi nal word on the validity of any form of positive law. Finally, the article considers the possibility of the development of a fi fth model in which even the constituent people would be bound by certain principles to be identifi ed and enforced by judges.

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The Language of Eternity: Judicial Review of the Amending Power in France (or the Absence Thereof)

Cited by 6 publications

References 3 publications

Constitutional Narcissism on the Couch of Psychoanalysis

Constitutional Narcissism on the Couch of Psychoanalysis

New Economic Governance in the European Union: Another Constitutional Battleground?

A new typology of judicial review of legislation

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