Reviewed by John E. Finn, Department of Government, Wesleyan University. E-mail: jfinn [at] wesleyan.edu.
Constitutional change is a central component of all constitutional orders. This book contributes to our understanding of constitutional change in two ways – first by offering fifteen case studies of constitutional change in particular jurisdictions (14 nation states and the European Union), and second, as noted on the book jacket, by considering whether there emerges from these case studies “any overarching theory or theories about constitutional change in liberal democracies.” The short answer to the question is that nothing as grand as a theory or theories of constitutional change emerges, but the authors do formulate a number of hypotheses, some descriptive and some predictive, that make this a valuable contribution to the study of comparative constitutional law.
In a too-brief opening chapter, Oliver and Fusaro identify a number of sources of pressure for constitutional change, both internal and external. External sources include internationalization and “Europeanisation,” globalization, terrorism, religious fundamentalism, and migration. Internal pressures include “citizen demands” for a variety of changes in governance, including greater transparency and efficiency in democratic institutions, human rights, as well as demands for devolution, federalism, and “even secession or independence” (p.5). In the face of such pressures, the editors describe their project as identifying “the factors which influence changes” as well as “the processes and procedures by which change takes place” and as “making comparisons between a range of differing countries and constitutional arrangements” (p.5). Oliver and Fusaro also make clear in this chapter that their understanding of the two chief variables – constitutions and change – is comprehensive and catholic in nature. Thus the term “constitution” includes both fundamental documents and rules that are located elsewhere, such as in legislation or judicial decisions, as well as “conventions, codes, guidance, concordats and memorandums of understanding which set out how certain aspects of government are or should be conducted” (p.3). The term “change” includes formal change and rules that govern the process of constitutional amendment, as well as informal change, which may include judicial decisions that interpret constitutional provisions, as well as alterations in constitutional practice by institutional actors and political culture.
Part Two is comprised of the fifteen case studies. As is often the case with such works, the individual studies vary somewhat in quality and in ambition. Several of the countries chosen for study are members of the European Union, among them a common law jurisdiction (the UK), several civil law systems (including Germany, Italy, and Spain), a Nordic state (Finland), a former communist state Czech Republic), parliamentary systems, and a hybrid system (France). Countries from outside [*44] the EU include Canada, India, Israel, New Zealand, South Africa, Switzerland, and the United States. Some of these chapters – such as those on Switzerland, Finland, and New Zealand –will be especially useful for American audiences, in part because the literature on these jurisdictions is more limited, and in part because there are aspects of constitutional design and practice in these countries that some readers may find unusual. Still, it would be useful if the editors advanced a more detailed and robust explanation of why some countries were included and others omitted. If, as Oliver and Fusaro indicate, the ultimate aim is to develop a theory or theories of constitutional change, and not simply a compendium, it would be important to set out and to explain in some detail what principles guided their choice of cases. One wonders, for instance, why some important constitutional democracies in Europe, such as Ireland and Hungary, are absent, and why there are no South American studies.
Particularly notable contributions include the chapters on Canada, Finland, South Africa, and Switzerland, all of which contain insightful discussions about the relationship of formal mechanisms for change with de facto changes in constitutional practices. The chapter on the European Union, by Renaud Dehousse, is also especially useful for its discussion of the relationship between strict formal rules for amendment and the reality of considerable and dynamic change. This chapter also includes a very thoughtful discussion of “constitutionalism without a constitution” and the relationship between constitutionalisation and judicialisation. As should be expected, however, there is considerable difference in how these chapters are organized and what they choose to emphasize. Some are largely descriptive in character, whereas others reach for more abstraction. Some seem almost idiosyncratic. The chapter on the United States, for example, by Stephen Griffin, is less a comprehensive overview of change than a summary of Griffin’s well-known (and impressive) work on informal constitutional change “through the historical development of state institutions,” (p.368) a thesis Griffin has pursued in other venues. It includes a brief discussion of changes in the presidency and foreign affairs wrought by 9/11. I am not sure how useful this chapter will be to scholars who need or want a basic overview of constitutional change in the United States, and the discussion of the institution of the presidency is too brief to be of much use for most North American scholars.
The third part of the book, comprised of two concluding chapters, is easily the most ambitious. The first of these chapters, ostensibly a comparative analysis of constitutional change, is really just a selective summary or listing of observations culled from the case studies. The chapter is a useful compendium, but the more interesting work occurs in the last chapter, where the editors “attempt to formulate some hypotheses….which might contribute to a theory of constitutional change” (p.405). Again, to call these assorted hypotheses a theory, or even a start toward a theory, is too much, especially since these two chapters do not address the obvious question of what we should expect a theory of constitutional change to accomplish. Is the purpose of such a theory to tell us how to best design constitutional orders? To predict when and under what circumstances constitutional design (and other variables) will or should facilitate or impede change? To explain the dynamics of change? Unfortunately, the editors do not at length address what a theory of constitutional [*45] change should explain or why it would be useful to have one, though they do offer an occasional suggestion, such as noting that a theory of change ought to be able to account for “tension between the relevance of the text and the historical developments which have informally changed text-based institutions” (p. 407).
Still, there are some important and interesting claims here. Among the more interesting (and arguably well known) formulations is claim #15 that “constitutional change appears easier to achieve under the pressure of internal and external emergencies” (p.427). But the uneasy relationship between #15 and #16 (p.428), which states that “All constitutional arrangements include superconstitutional provisions or principles which are regarded as unamendable,” (the book refers to these as eternity clauses) is left unexplored. Similarly, the editors do not do nearly enough to explain the significance of hypothesis #19, which states that “Constitutional indeterminacy can facilitate anti- or un-constitutional activity,” and of hypothesis #22, which provides that constitutional interpretation by courts “is the most common form of constitutional maintenance and it often goes beyond maintenance” (pp.430-31). In both instances the commentary that follows is cryptic or obvious.
In sum, even though the book does not achieve its grand purpose of moving us very far along to a theory of how constitutions change, it makes a significant and welcome contribution to our understanding of constitutional change.
Ackerman, Bruce. 1998. WE THE PEOPLE: TRANSFORMATIONS. Cambridge, MA: Belknap Press.
Griffin, Stephen M. 1996. AMERICAN CONSTITUTIONALISM: FROM THEORY TO POLITICS. Princeton: Princeton University Press.Griffin, Stephen M. 2008. “Rebooting Originalism,” 2008 UNIVERSITY OF ILLINOIS LAW REVIEW, 1185 (2008).
Copyright by the author, John E. Finn.