1

CONSTITUTIONAL REFORM:

OPPORTUNITIES AND REALITY

Vanja Grujic1

Abstract: Constitutions of a good few liberal democracies are showing to be in the hands of judges

and lawyers, better than in the hands of the people, and public deliberation and participation in the

process of the constitutional reform imposes as an idea worth of academic discussions and writings.

One of the ways to approach this new, public concentrated constitutionalism, is by using

amendments to the original document. Therefore, this paper takes a nature of amending policy as a

background to the theory that is offered by professor Tushnet. After examination of Thick and Thin

Constitution as a stand point, constitutional analysis and constitutional comparison, focused on the

amending procedure in federal constitutions, will follow. Accent is put on the constitutions of the

United States of America and Spain. This serves to show that in reality constitutions are more rigid

than they should be, and moreover, they are constantly being interpreted, and therefore altered, by

the courts. On the way to the conclusion, two constitutional ideas will be presented, weak

constitutionalism and populist constitutional law.

Key words: Tushnet, US Constitution, Spanish Constitution, amendments, popular

constitutional law, constitutionalism.

Introduction

First written, modern and democratic constitution in the world was signed in 1787 and last

time was amendment in 1992. This twenty-seventh amendment was submitted to the states for

ratification in September 1789 and became part of the the United States Constitution in May 1992, a

record setting period of 202 years, 7 months and 12 days. Previous amendment was in 1971. This is

1 Student of a Doctoral Studies on the Faculty of Law, University of Brasilia. Currently researcher at

European Center of European Law and Politics, University of Bremen. E-mail: vanjagrujic@yahoo.ca

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a reality that framers of the constitutions could not predict and incorporate into the original text.

Avoiding a change of something that was made to be changed in order to correspond to the present,

is making harder to obey and understand constitutional provisions. Constitutional theory has turned

its back on democracy.2 Ordinary citizens are lacking of opportunities to re-create 'their'

fundamental laws, to engage in acts of democratic procedure and creation, question the legitimacy

of 'their' constitution, debate and deliberate about it. It seams that today doors for such a

deliberation, doors that link people with their constitution, are closed or perhaps they actually have

never existed in some countries.

This paper will start from the beginning of the constitutional theory, from the idea that made

basis that we are still considering worth and we are not about changing them soon. That idea places

people as the creators and as the source of the constitutional legitimacy. Story about democracy and

constitution is very simple and nice. People vote for their representatives, empower them with

decision-making rights, and those representatives make calls according to the will of the same

people who allowed them to do so. Constitution comes as a most important document of one state,

document that represents idea that transforms same people into citizens of one country, first and last

protector of fundamental and human rights. Idea is also, that a written constitution enables later

generations to become their own authors, but only by making the words their own, by changing,

reforming the body of the document. The questions that this paper will meet is focused around these

idea. Questions like how can constitutions claim to enjoy democratic legitimacy, how can they be

considered as a creation of the people if they can only be changed and interpreted by those

occupying positions of power? The participation of ordinary citizens in constitutional change in the

world's most 'advanced' democracies (such as the Unites States, Canada and the United Kingdom) is

weak at best: the power of constitutional reform usually lies exclusively in the hands of legislatures.

In some cases, constitutional amendments are subjects to ratification by the electorate in

referendums; in others, citizens are not even allowed to take part in such a low-intensity form of

participation before the country's fundamental constitutional framework can be transformed.3

First part of the work will examine division between Thick and Thin Constitution as a stand

point for its critique and as an argument to the later discussion about constitutional theory of

Tushnet that is based on idea of the populist constitutional law. Discussion around Tushnet is very

important, not only as a critique of some ideas of his, but yet it will open a door to enter into the

body of the text of the Constitution of the United States of America (US Constitution), that will

allow us to present that problem in theory is a problem in praxis also. Actually, the Tushnet writings

2 Joel Colón-Ríos, Weak Constitutionalism: Democratic Legitimacy and the Question of Constituent Power (2012), 1.

3 Id. 2.

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are inseparable with US law and juridical system. In the first part of the paper, some contra

arguments shall also be presented.

Following chapter will be dedicated to constitutional analysis and constitutional comparison.

In order to keep the work systematic, this part will be focused around division of ways to amend

federal constitutions that professor Anne Twomey made. Spanish and US constitutions will be

given more attention. This part is vital for the work, because it confirms through the facts and texts

of different constitutions what we say at the beginning: that in many democratic countries, the idea

of people changing constitution is just an idea that perhaps framers had once, still far from the

reality. Additionally, the indicated fact is not because these democratic countries have to much lazy

citizens or that they are not interested in changing anything. It is primary on the grounds that in

many constitutions people are not even included in the constitutional reform or if that theoretical

possibility exists, has never been practised.

On the way of conclusion, two constitutional ideas will be presented, weak constitutionalism

and populist constitutional law.

Thin and Thick Constitution

Talking about Thin and Thick Constitution cannot be done without taking the US

constitutional history and practice under the loupe. Shortly, on the start of this Chapter, we can say

that American tradition is what Tushnet calls the thin constitution. For him, our constitutional law

should be based on the "thin Constitution" - the Constitution's fundamental guarantees of equality,

freedom of expression, and liberty, and not the aggregated provisions and clauses of our entire

constitutional text.4 This thin Constitution, is best captured by the "the principles of the Declaration

of Independence and the Constitution's Preamble"5 and it brings upon idea of being American

citizen better than all other provisions of the constitution. Tushnet declares that "we ought to take as

our project realizing the Declaration's principles because, in the end, those principles are good

ones"6 because the thin constitution, he believes, draws from the best parts of our political

traditions. At this point, again we have to take into account that these components of thin

constitution that Tushnet argues about, are highly connected to the US constitutionalism. When we

talk about constitutionalisation of the human rights, image we get is not same like in the US.

According to Hirschl, there are three broad categories of constitutionalisation of the human rights

into national constitutions: (1) in some countries constitutionalisation was part of a dual transition

4 Tushnet, Taking the Constitution away from the Courts (1999), 11.

5 Id. 181.

6 Id., 193.

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to democracy and market economy (e.g. countries in the Eastern Bloc); (2) in other countries,

constitutionalisation of rights was byproduct of transition to democracy (e.g. South Africa, several

Latin American countries in the 1980’s, and a number of Southern European countries in the late

1970’s); (3) in many countries, constitutionalisation of rights has neither been accompanied by, nor

has resulted from fundamental changes in political or economic regime (e.g., Canada 1982,

Belgium 1985, New Zealand 1990, and Israel 1992).7 Therefore, human rights as a essential part of

our thin constitution is not something that all constitutions have incorporated the way US did. This

adjective “thin” its because of two things: compared to the rest of the constitutional text,

Declaration and Preamble are shorter, ‘thin’ part, and these parts are more elastic and its precepts

can have different expressions and can be applied in a variety of ways. Focusing on the thin

Constitution "does not determine the outcomes of particular political controversies or dictate much

about public policy. Instead, it orients us as we think about and discuss where our country ought to

go".8

What does than the rest of the constitution represent? Biggest part of the constitution,

according to Tushnet, consists of the "thick" constitution, "detailed provisions describing how the

government is to be organized”.9 The thick constitution exists merely to support and frame the

essence of our constitutional order, the principles expressed in the Preamble and Declaration, the

thin constitution. While the notion is not fully develop, we can make a conclusion that the ‘thick’

part of US Constitution can be explained as a provisions that present idea of federalism and

organisation of the Government, more objective matters that are not connected to the building of

American spirit. Despite the greater significance of these specific constitutional provisions relative

to the thick constitution as a whole, Tushnet urges us to remain focused on the general guarantees of

the thin constitution. This fact is big possibility to critique Tushnet’s surgical division of the body

text of the constitution, because it is hardly to imagine that citizens of US cannot emotionally

connect to the provisions about federation for example, as federate spirit of their country is

something where its name came from. Furthermore, Tushnet will continue to the main idea of many

of his works, idea that we mistakenly think "that the thin Constitution consists of, or is the same as,

what the Supreme Court has said about these 'important' constitutional provisions."10

Who needs to

redefine and reinterpret the constitution: people or the courts? In addition to arguing that our

constitutional law should be based in redeeming the values of the thin constitution, Tushnet writes:

7 Hirschl, The political origins of Juridical Empowerment through Constitutionalization (2000), 93.

8 Tushnet, Taking the Constitution away from the Courts (1999), 194.

9 Id., 18.

10 Id., 11.

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"Disagreements over the thin Constitution's meaning are best conducted by the people, in the

ordinary venues for political discussion. Discussions among the people are not discussion by the

people alone, however. Politics does not occur without politicians, and political leaders play an

important role in the account of populist constitutional law I develop here."11

This quote is the basis of his populist constitutional law: giving to the people constitutional

responsibility, taking them away from the courts. And furthermore this system of constitutional law

is based strictly on the thin constitution. Such a move would induce instability and even chaos into

our legal system, and ultimately the political order as whole.

May be we should look on the problem of taking the constitution out of the courts, from

another perspective, not just as a bad work of jurisprudence. Perhaps finger should be pointed to the

institutional incapacity of Congress and the President to interpret the Constitution responsibly.

Tushnet argues that we cannot establish Congress’s capacity by comparing its performance against

judicial interpretations, taking the latter to be the standard.12

As Tushnet formulates the problem,

Congress “knows the courts are available to correct (some of) their constitutional errors,” and so

“legislators have little incentive to expend great effort in enacting only constitutionally permissible

statutes.”13

The relation between thin and thick constitution is something that Tushnet doesn’t develop

much. It seams that in order to understand the story of two-ideas constitution, we need to focus on

the ‘thin’ one. Still, we are not monads simply pursuing our individually constituted projects

unaffected in principle by anyone else. We are embedded in historically created supra-individual

entities - families, neighborhoods, a nation - and we are constrained by them and responsible for

them simultaneously. The experience of constraint and responsibility is an important human value.14

Shortly said, we are constituted as a people by the thin Constitution, not the thick one. Still, the

object of the reform is the Constitution as a whole, with its thin and thick part.

Constitutional reform - courts or people?

Constitutional theory resembles the linguistic theory because both systems suppose to be

elastic but rigid, in order to keep stability, but also to answer to the new reality and stay changeable

to a certain degree. Constitution is supposed to represent everything we as people have power of

and everything that we as people have will for. Constant changing in document like this, would

11

Id., 14. 12

Tushnet, Some Notes on Congressional Capacity to Interpret the Constitution (2009).

13 Id.

14 Tushnet, Taking the Constitution away from the Courts (1999), 192.

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make a anarchy and probably vanish institution of constitution. Still, preserving the original text on

the one hand and reinterpret it through Court decisions on the other hand, where people that gave

legitimacy to the original document and that are holders of amending power, finish as its non

important constituent, is at least paradox. This work doesn't see some constitution as the direct

representation of the reality and the century we are living in, or that its role should be that one. Fact

that number of amendments in many democratic countries is so low, but courts decisions keep on

changing nature of the legal order in all spheres of our lives, is alarming. These situations will be

thoroughly explained in the following analysis of some federal constitutions.

Tushnet in his works gives many examples of wrong juridical decisions and how they

influenced on our fundamental rights, better said, how those decisions damaged them and put the

example for the future limitation of inviolable rights we have. Still, it is not every time about

impinge of our rights. It can also be about organising our society. Good examples for these

decision-making that aims to change the nation orientation and therefore influence from up on the

social structure, are laws imposed by European Union (EU) to the new members, but also to want-

to-be members. Later in the work we will see that the only times Spanish Constitution has been

amended was under the influence of EU. Other problem is that many changes are already done, but

they are still not the part of the body text of the constitution. Good example of this is same-sex

marriage situation in Brazil. This is just one of the numerous similar cases, but the dilemma stays

the same: is that will of the people that judges are representing and if it is, why is than not the part

of the legal body and constitution? I call it paradox because the classic, natural legal order is

disordered. We have a practice of expanding one right to another group of people, even though their

marriage is not seen by the law. In other words, we are not only practising the scenario to give more

rights to more people, but yet somehow putting new institutions, as a same-sex marriage into the

picture. We practice both, institution and procedure, which are not recognized by our constitution or

legal body, just by court decisions and orders. If the rights and institutions need to be expanded, if

they need to be made more inclusive and transformative, or if minority protections need to be

strengthened, progressive judges and academics will always find novel ways of re-interpreting the

existing constitution. The constitution itself doesn't need to be touched.

At this point we came to Sullivan’s so called disease amendmentitis - an unjustified desire

by the people to amend the Constitution15

, and the fear of it. This ‘disease’ is used as an argument

in many papers that are against constitutional amending. It can be described simply as the situation

in which more you amend the Constitution, the more it seems like ordinary legislation. And the

more the Constitution is cluttered up with specific regulatory directives, the less it looks like a

15

Sullivan quoted in Tushnet, Taking the Constitution Away from the Courts (1999), 177.

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fundamental Charter of government.16

Here Tushnet gives his answer: “Sullivan takes arguments

against amending the Constitution frequently to support an argument against amending the

Constitution at all.”17

We are witnesses that politicians don't like amending the constitution.

Therefore, the constitutions are becoming given not to be changed, but to be followed and

interpreted by the Courts. According to this premise, constitutions given like that are not

representing reality, they are only preserving some ideas and traditions that once in the history

played a role of uniting people under one national state. To explain this claim better, next part will

be dedicated to the processes of the constitutional amending in several federal constitutions.

Constitutional amending

Idea of bringing the constitution back to the people, brings the first argument: has it ever

been in the hands of the people? If we manage to turn over this theoretical curve and continue with

the talk, next point would be how to do it. Naturally, amending would arise as the path we should

follow. Indeed, the key of each constitution is the mechanism by which it may be amended or

repealed. The body in which this power is vested is the body in which sovereignty is ultimately

held. In most countries, this body is claimed to be the people. While in a few countries the people

are directly consulted about constitutional reform through the referendum and may even initiate it

by themselves, in most countries the role of the people in constitutional reform is exercised

indirectly through their elected representatives.18

Further, in most countries, it is not the will of the

majority of electors that prevails with regard to constitutional amendments. Instead, special

majorities19

are required either in referendum or in parliamentary votes in order to protect the

interests of minorities, be they ethnic or linguistic minorities, or territorial minorities. In sum, in

most of the democratic countries, national Parliaments are those which have the power to initiate

constitutional reforms. There are some exceptions. For example, in Brazil constitutional

amendments may be initiated by more than half of the legislative assemblies of the States20

and in

Spain where the legislatures of the Autonomous Communities have the power to initiate

constitutional amendment.21

16

Id. 17

Id., 179. 18

Note, for example, the decisions that the direct approval of the people in a referendum was not needed to approve the

new South African Constitution in 1996 or the German Basic Law upon the reunification of Germany. 19

For example, in Australia, where the Parliament asks by referendum each Australian on the electoral roll to vote. If a

majority of people in a majority of states, and a majority of people across the nation as a whole, (called a double

majority) vote yes, then the part of the Constitution in question is changed. Otherwise the Constitution remains

unchanged. 20

Constitution of the Federative Republic of Brazil (1988), Article 6. 21

The Spanish Constitution (1978), Section 87 and Section 166.

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Following the division made by Anne Twomey22

, there are four ways of amending the

constitutions in a federations: (1) Primarily by National Parliaments, (2) Combination of the

National Parliament and Sub-national units, (3) Constitutional Assembly or Convention and (4)

Referendum and direct democracy. This work will present first two models.

(1) National Parliament among many duties, in some federations, is exclusively responsible

for the amendment procedure. In this federation nor people or sub-national levels are involved in

alteration of the constitution and may be that is a reason why some of those countries are

experiencing legitimacy crisis.23

Twomey sees three basic models for constitutional reform by

national Parliaments in federations. The first model gives virtually no effective input to the sub-

national units and all power to the national Parliaments. If we continue reading the Article 6 of

Constitution of the Federative Republic of Brazil (Constitution of Brazil), Paragraph 2 says:

“The proposal shall be discussed and voted upon in each House of the

National Congress, in two readings, and it shall be considered approved if it obtains

in both readings, three-fifths of the votes of the respective members.”

That means, although a majority of States may collectively initiate proposals for

constitutional amendments, but when it comes to approving the amendments, this must be done by

three-fifths of members in each House of the National Congress on each of two readings of the bill.

While the Senate is comprised of three representatives from each State, they are directly elected by

the people, rather than by State governments or legislatures. The only influence the States have on

the process is through the State-based strength of political parties and the role of State Governors as

political power-brokers.24

(2) The second model is the German model, where sub-national units have far more

effective representation in the upper House giving them genuine involvement in constitutional

reform. In Germany, the Basic Law is amended by a special majority of two-thirds in both the

Bundestag (lower House) and the Bundesrat (upper House).25

The German model was largely

adopted in South Africa, where the representatives of the Provinces in the National Council of

Provinces (upper House) vote together on matters affecting the Provinces. The level of approval

required, however, varies depending upon the nature of the constitutional amendment. In Article 74

of Constitution of the Republic of South Africa it stands that depending on the chapter (read

22

Professor Anne Twomey, focused one of her papers on process of amending in different federal systems, The

involvement of sub-national entities in direct and indirect constitutional amendment within federations (2001) . 23

Note, Spanish crisis with Referendum for independence of Catalonia. 24

Anne Twomey, The involvement of sub-national entities in direct and indirect constitutional amendment within

federations, (2001), 5. 25

The Basic Law for the Federal Republic of Germany (1949), Article 79.

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section) of the Constitution that is an object of alteration, the votes required from the General

Assembly may vary from 75% to the two thirds of the votes, while in the National Council of

Provinces, six provinces need to support proposal of the amendment.26

The third model combines a system of parliamentary approval with a compulsory

referendum where a total revision of the Constitution is proposed, or an optional referendum for

partial revisions, which can be initiated by a minority in either House.27

Although the element of a

referendum does not necessarily result in the protection of the interests of sub-national units, it

dilutes the power of the national Parliament and forces it to put the case for change to the public.

The two examples of this model are Austria and Spain. This paper shall reflect especially on the

Constitution of Spain. In Spanish federation, the legislative initiative belongs to the Government,

the Congress and the Senate, and although the legislatures of the Autonomous Communities have

the right to initiate constitutional amendments, the passage of those amendments is through the

Cortes Generales (Congress and Chamber of Deputies, lower House).28

Additionally, the Senate

(upper House) represents the territorial provinces as well as the Autonomous Communities. 29

In

the same Section 87, subsection 3, stands that “An organic act shall lay down the manner and the

requirements of the popular initiative for submission of non-governmental bills. In any case, no less

than 500 000 authenticated signatures shall be required. This initiative shall not be allowed on

matters concerning organic acts, taxation, international affairs or the prerogative of pardon.”30

This

threshold is very high comparing to other neighbour federations, like Switzerland where the popular

initiative needs 100 000 signatures.31

Still, Article 166 excludes popular initiative as a way to

amend the constitution declaring that the right to propose a constitutional amendment shall be

exercised under the provisions of section 87, subsections 1 and 2.32

In Spain, constitution can be

amend by approving the bill with three fifths of the votes in both Houses. If there is no agreement

between the Houses, an effort to reach it shall be made by setting up a Joint Committee of an equal

number of Members of Congress and Senators which shall submit a text to be voted on by the

Congress and the Senate.33

Still, the common procedure is not achieved but the amendment is

approved by a majority in the Senate, it will pass if the Congress (lower House) adopts the

amendment by a two thirds majority34

. Therefore, the true power over the constitutional

26

Constitution of the Republic of the South Africa (1996), Article 74. 27

Anne Twomey, The involvement of sub-national entities in direct and indirect constitutional amendment within

federations (2001), 5. 28

The Spanish Constitution (1978), Section 87. 29

Id., Section 69. 30

Id, Section 87. 31

Federal Constitution of the Swiss Confederation (1999), Article 140. 32

The Spanish Constitution (1978), Section 166. 33

Id., Section 167, ss 1. 34

Id. ss 2.

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amendments has the Congress. People, Spanish citizens, can be asked on the referendum if, after the

passage of the amendment, one tenth of the members of either House so requests, a referendum

upon the amendment is held. Or, in a case of total constitutional reform, the compulsory referendum

shall be organized.35

At the end, it is important to say that Spanish Constitution has been amended

only two times, both on the demand of European Union (EU). The first time, Article 13.2, Title I

was altered to extend to citizens of the EU the right to active and passive suffrage (both voting

rights and eligibility as candidates) in local elections. In 2011 the Spanish Parliament proposed a

law amending the Constitution to require a balanced budget at both the national and regional level

by 2020. The law states that public debt can not exceed 60% of GDP, though exceptions would be

made in case of a natural catastrophe, economic recession or other emergencies. The changes will

also require the government to stick to EU annual deficit limits of 3% of GDP.36

The fact that the

only changes of Constitution came from outside, from European level, is very important argument

when we get back to the question from the beginning of the Chapter, how to bring the Constitution

back to the hands of the people? Although the analysis of current situation with announced

referendum in Catalonia and general legitimacy situation in Spanish regions would be very

fruitfully and interesting, this paper shall continue to the next matter due to the limited space.

US amending model

As Tushnet explains, this focus flows from three facets of the written Constitution: it “is old,

short and difficult to amend”.37

For this paper feature ‘hard to amend’ is the most important. Before

analysis of the procedure of constitutional altering, short comparison would be suitable to start the

story. US Constitution is indeed the oldest single-document constitution in the world. Norway’s

constitutions is just after to the U.S. Constitution. It was signed and sealed in 1814. Since than,

more than 200 amendments to the Constitution have been adopted. Similarly, the Constitution of

the United States is generally regarded to be more than 200 years old, although it has been amended

27 times, most recently in 1992. A bill of rights was passed soon after the Constitution was adopted

in 1787. The manner in which the vice-president is selected was changed in 1804. The manner in

which representatives are selected for its federal chamber, the Senate, was changed by the 17th

amendment in 1913 as direct election of senators replaced appointment by state governments.

Suffrage rights for blacks and women were greatly expanded by the 15th and 19th amendments

(1870 and 1920), and the term of office for American presidents was limited to two terms by the

22nd (1951).

35

Id., Section 168. 36

See http://www.elmundo.es/elmundo/2011/08/23/espana/1314089107.html 37

Tushnet, The Constitution of the United States of America: A Contextual Analysis (2009), 1.

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With its first modern Constitution, US had made a great influence on the other countries

constitutions. Therefore, their model of amending by a combination of the national Parliament and

sub-national units is more common one than constitutional amending primarily by National

Parliament. Thus, how to amend U.S. Constitution? It is unusually difficult. The procedure is

regulated by the Article V:

“The Congress, whenever two thirds of both houses shall deem it necessary, shall propose

amendments to this Constitution, or, on the application of the legislatures of two thirds of the

several states, shall call a convention for proposing amendments, which, in either case, shall be

valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of

three fourths of the several states, or by conventions in three fourths thereof, as the one or the other

mode of ratification may be proposed by the Congress; provided that no amendment which may be

made prior to the year one thousand eight hundred and eight shall in any manner affect the first and

fourth clauses in the ninth section of the first article; and that no state, without its consent, shall be

deprived of its equal suffrage in the Senate.”38

The first method of amendment is the only one used to date. Because any amendment can be

blocked by a mere thirteen states withholding approval (in either of their two houses), amendments

don't come easy. In fact, 11 000 amendments have been proposed, but only 33 have received the

necessary congressional super majorities and only 27 have been ratified by the states including the

amendments 1-10 make up what is known as the Bill of Rights.39

Problem with Article V is that

even when a proposed amendment manages to cross the congressional two-thirds-of-both-houses

threshold must be ratified by three-fourth of the states. That’s 38 out of 50, that puts the bar even

higher. Levinson calls this article, an “iron cage” that prevents needed reforms in the Constitution.40

Bar to high means more rigid constitution. Rigid means less elastic. That can lead to the public

dissatisfaction about some matter, and as the history showed and it is still showing, to the

revolutions or civil disobedience. For example, constitution of Yugoslavia was one of the hardest to

amend.

The very difficulty of amending the Constitution greatly increases the importance of

Supreme Court decisions interpreting the Constitution, because reversal of the Court's decision by

amendment is unlikely except in cases when the public disagreement is intense and close to

unanimous. Even unpopular Court decisions (such as the Court's protection of flag burning) are

38

Constitution of the United States of America (1787). 39

United States Bill of Rights (1791). 40

“Article V constitutes an iron cage with regard to changing some of the most important aspects of our political

system.”, Levinson, Our Undemocratic Constitution: Where the Constitution Goes Wrong? (2006), 165.

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likely to stand unless the Court itself changes its collective mind. That collective mind of the

Supreme Court has become an extended hand of the written constitution, that with each decision

changes order in the country, governs various issues, cuts and gives rights as a cake. Perfect

example for weight of Supreme Court decisions, are cases connected to the counter-terrorism

legislation. Framers of the US Constitution have not thought about or known about terrorism in the

time they were writing the Constitution. Still, terrorism became very important part of our realities,

especially in the US where the counter-terrorism legislation is the leading and the most extensive in

the world. This new, counter-terrorism legislation, has made impact on traditional structure and

nature of legal principles, especially in the part when we talk about impact on the fundamental

rights. These include fundamental rights that underline western liberal democracies such as the right

to silence, the rights to freedom of expression and association and the right not to be detained

except after a fair trial. The impact of these counter-terrorism laws upon such a constitutional

principles has been their most controversial aspect. Still, Constitution haven’t changed, fundamental

rights and freedoms are the same since the beginning, just the courts took the political wave and

started interpreting them through prism of terrorism. Perhaps their decisions are essential for

security of US, but here the importance is put on the text of the Constitution that remains the same.

Shortly said, in the times when there is a political or general need for a changes, it happens through

Courts decisions, not by amending the constitution, nevertheless asking people for their opinion.

That is why constitutional theory in US is criticised and discussed so much.

Conclusion

Do people really suffer from amendmentitis? Why do they even think about participating in the

constitutional changing when they have their representatives and courts to participate in their

names? Understandable argument. Yet, we still listen to the old story of democracy: people are

creators of their constitutions, people give the power to that highest document that everyone needs

to obey, people are legitimacy of every democracy. This paper gives other perspective on this

relation, facts how do actually people see their constitutions, how close or far away they are in a

relation to them. The participation of ordinary citizens in constitutional change in the leading democracies41

is weaker than it suppose to be, because the actual power of constitutional reform usually lies exclusively in

the hands of legislatures. Actually, around 4 percent of the world’s constitutions lack articles on formal

amendment procedures.42

In some cases, constitutional amendments are subjects to ratification by the

electorate in referendums (Switzerland is a good example of this practice); in others, citizens are not even

41

‘Leading democracies’ in this paper is used as a sintagma for a high develop countries that show interest in defending

human rights and democracy as ruling idea in their country and out of it, e.g. United States of America, Canada,

Germany, Spain, etc.) 42

Rasch and Congleton, Amendment Procedure and Constitutional Stability, citation omitted at page 1.

13

allowed to take part in such a low-intensity form of participation before the country's fundamental

constitutional framework can be transformed. Democracy defined as ‘rule of the people’ loses its meaning

with constitutional theory like this one. Confrontation of these two elements, democracy and constitutional

theory, might bring bigger problems than just academic or public arguing.

Changing the constitution has always and it still means political decision and politicians usually

don’t like making risks of a big changes. In the countries like US, changing the constitution could be bigger

risk than starting a war, which modern history had shown. Therefor, question to the academic and civil

society still remains: should the people be given more power over their constitutions? The risk of doing so is

indeed high, and this work has shown some of them, like more we amend the constitution, more it seams like

ordinary legislation; amendments may introduce incoherence into the constitution; any amendment is going

to leave some questions open for later interpretation, which threatens an even more serious problem of

unanticipated consequences.43

There are always risks associated with constitutional reform because

constitutional “mistakes” are more difficult to correct than ordinary policy mistakes, however, there

are also risks associated with constitutional rigidity. A perfectly rigid constitution could not answer

on a popular need for a change, and in limiting cases, could happen that civil or revolutionary wars

become the only possibility for “amendment.” An amendable constitution allows such changes to be

made at a more reasonable cost.44

Constitution like this should also have a degree of independence

from juridical interpretation, that as we have shown earlier, has a great impact on some

constitutions. Analysing constitutional theory from this aspect, at the end brings us to the question:

how should constitutional reform be like, if the leading democratic constitution are object of the

great critique? In this conclusion, just two possible ‘alternatives’ will be given, with a note that

there are numerous other approaches to the same matter of the constitutional law and theory. First

one is the weak constitutionalism. “The possible solutions to re-connect democracy with constitutionalism

(if they have ever been truly connected) is to make a new link, a new relation and approach between the

same. That link should be based on the enlarged democratic participation throughout deliberative process or

through the idea that ordinary citizens must be allowed to propose, deliberate, and decide on important

constitutional transformations through the most participatory methods possible, so called weak

constitutionalism.”45

By openly accepting this risk, Colón-Riós’ weak constitutionalism challenges

more than a symbiotic relationship between liberal democracy and constitutionalism. By accepting

the democratic legitimacy of potentially imprudent decisions, weak constitutionalism challenges the

entire genre of constitutional law, conceived, to use Martin Loughlin’s words, as a “method of

prudence”.46

His central idea is simple: the constituent power of the people mandates radical

political openness and the broadest direct popular participation in the process of constitutional

43

Sullivan quoted in Tushnet, Taking the Constitution away from the Courts (1999), 177. 44

Rasch and Congleton, Amendment Procedure and Constitutional Stability (2006), citation omitted at page 2. 45

Colón-Ríos, Weak Constitutionalism: Democratic Legitimacy and the Question of Constituent Power (2012), 2. 46

Oklopcic, Review of Weak Constitutionalism: Democratic Legitimacy and the Question of Constituent Power

(2006).

14

change. In this process, the constitutional form shouldn’t enjoy precedence: the citizens should be

allowed to propose, deliberate, and decide on a new constitution unconstrained by the strictures of

the existing constitution.

By the end of this paper, Tushents populist constitutional law shall be briefly presented. His

alternative is not developed in a great measure. Still, it is idea that is highly connected to his other

notions, such as thin and thick constitution that we have described in the first part of this work.

Populist constitutional law is the law committed to the principle of universal human rights

justifiable by reasons in the service of self-government.47

Ingenuously put, in the populist

constitutional law, the constitution is not in the hands of the lawyers and judges, but in the hand of

the people themselves. How hard is just to imagine that? Tushnet says that the Constitution was a

populist document, in the sense that the American people were constituted by our adherence to the

thin Constitution.48

Verb was is a key to this story. According to him, obeying principally

Declaration of Human Rights, the thin Constitution, and taking it to our political lives, is a solution.

However, thinking about legitimacy of the Declaration that he considers as a pure source of the

popular legitimacy, we cannot forget to mention Derrida’s opinion upon it. The Declaration that

finds a new institution (Constitution or a state) requires that a signer engage him or herself. The

signature maintains a link with the instituting act, as an act of language and an act of writing, a link

that has absolutely nothing of the empirical accident about it.49

If we follow this idea of the signer

as ultimate ‘owner’ of legitimacy, we will end up in the coil where we have representative of

representatives of the people in whose name they speak: the people themselves authorizing

themselves and authorizing their representatives in the name of the laws of nature that are inscribed

in the name of God, judge and creator. Following this thought, we will come back to the natural law

that is far away from democracy.

47

Tushnet, Taking the Constitution away from the Courts (1999), 181. 48

Id. 49

Derrida, Negotiations (2000), 47.

15

References

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