Search Results

Although other countries generally require special majorities, popular referendums or other safeguards to ensure that the constitution remains protected from day‐to‐day partisan manipulation, the constitution of the United Kingdom is notable due to the absence of these auxiliary precautions. New Labour did little to dilute their capacity in terms of constitutional amendment.

This chapter defines bills of rights as instruments giving an overarching legal status to a broad set of fundamental human or civil rights. It then argues that, despite this common shape, bills of rights differ significantly in terms of their designed strength and nature. This divergence can be usefully captured by the variable of bill of rights institutionalization (BORI). This new quantifiable measure is based on the instrument's legal status, its rigidity, and the scope of its rights protection. BORI scores are calculated for thirty‐six democracies and correlated against a number of possible determinants of bill of rights outcomes. Not adopting a bill of rights during political transition (e.g. independence) and having a British heritage are both strongly correlated with low BORI scores. All the Westminster democracies – Australia, Canada, New Zealand, and the United Kingdom – share both these characteristics. The chapter closes by providing a précis three factors which make close qualitative study of these four cases particularly interesting: (a) very low average BORI scores, (b) a common trend towards adoption of a bill of rights, and (c) substantial divergence in BORI between the cases.

Which constitution is the world’s most difficult to amend? Scholars of comparative constitutional law almost uniformly have the same answer: the U.S. Constitution. It has been amended relatively few times since its creation in 1787, thousands of amendment proposals have failed, and today it seems virtually impossible to amend. Is this enough to prove that the U.S. Constitution is the hardest to amend? This chapter examines rankings of amendment difficulty that focus on the codified rules of amendment, and concludes that none of them is a reliable ordering of relative rigidity and moreover that all of them have a fatal flaw: they fail to account for nontextual sources of amendment ease or difficulty. These nontextual sources include uncodified changes to formal amendment rules, popular veneration for the constitution, temporal variability in amendment difficulty, and prevailing cultures of amendment. The chapter shows that three different cultures of amendment can either exacerbate or assuage amendment difficulty: amendment culture as an accelerator of change, as a redirector of change, and as an incapacitator of change. This chapter also illustrates how and theorizes why formal amendment rules are sometimes modified in ways that ultimately remain invisible to scholars who take a narrow text-based approach to measure amendment difficulty. The chapter concludes both that rankings of amendment difficulty are doomed to failure and that they may not be worth the effort. This chapter considers constitutions from around the globe.

There are presently too few resources to guide constitutional designers in building the rules of constitutional amendment. This chapter offers a roadmap for designing constitutional amendment rules. As is true of building an edifice, constructing the rules of constitutional change requires careful thought about design and operation. This chapter explains that amendment rules are organized around four sets of fundamental choices requiring designers to set the foundations of the polity, to choose among pathways to initiate, propose and ratify an amendment, to select specifications that will put the foundations and pathways into operation, and finally to determine how and where amendments will be recorded. This chapter also explains that formal amendment as a practice reflects the democratic values of the rule of law, including predictability, transparency, and publicity. There are of course advantages to informal amendment and methods of change that violate the codified rules of change, but there are even greater democracy-enhancing virtues that are possible only with formal amendment. This chapter considers constitutions from Austria, Costa Rica, Great Britain, India, Ireland, Spain, Switzerland, and the United States.

This chapter aims at linking the seventeen proposals defended in the book with the notion of generational sovereignty. Can they be considered to promote or to jeopardize generational sovereignty? We begin with a definition of three notions of generational sovereignty. We then explore whether generational sovereignty, understood in any of these three senses, can actually be restricted. Following that, we put forward and defend a twofold claim: most—if not all—proposals included in this book are likely to contribute to a fairer distribution of effective (political) generational sovereignty while only restricting to a limited extent the jurisdictional sovereignty of current and coming generations. Finally, we explore whether restrictions to generational sovereignty could be justified, how sovereignty issues connect with distributive justice and solidarity concerns, as well as how they connect with issues of short-termism.