How Constitutions are Changed

by Professor Christer Karlsson, Uppsala University

 

Constitutional change has emerged as a prominent topic in the research on constitutional politics and comparative law. In practice, constitutional change can be brought about in two fundamentally different ways: either by changing the wording of the constitutional document, or by changing the meaning of the constitution while leaving the constitutional text itself unaltered. The distinction between explicit and implicit constitutional change is certainly not a new one. Georg Jellinek published his seminal work Verfassungsänderung und Verfassungswandel as early as 1906 and more recent studies have shown that both kinds of constitutional change occur regularly in modern democracies. However, we still have only restricted knowledge of how these competing modes for bringing about constitutional change are deployed in practice as only limited research efforts have been deployed to compare the use of explicit and implicit constitutional change across countries.

In a recent study I have sought to advance our understanding of how constitutional reforms is brought about by examining to what extent member states of the European Union have used explicit and/or implicit constitutional change when reforming their constitutions in light of EU membership.* An advantage with choosing to study constitutional change in connection to EU membership is that all member states are subject to similar demands for constitutional reform as a consequence of becoming members of the EU and this greatly facilitates comparison between countries.

The empirical examination focused on how EU member states have handled the adaptational pressure and demands for constitutional reform in three important areas linked to membership in the EU: namely, issues concerning sovereignty, the selection of representatives, and the competencies of key domestic institutions in regard to EU affairs. The empirical investigation was premised on the insight that while constitutional change can take either an explicit or an implicit form, we are not in practice dealing with an either/or affair. To be sure, the two methods are by no means mutually exclusive ways to bring about constitutional change; they are instead simply different modes that often appear in tandem. For each issue of constitutional change examined scores were assigned according to a five-point scale: (1) exclusively or predominantly explicit change with minor or no elements of implicit change; (2) primarily explicit change with some elements of implicit change; (3) approximately as much explicit as implicit change; (4) primarily implicit change with some elements of explicit change; or (5) exclusively or predominantly implicit change with minor or no elements of explicit change.

So, what about the results? Have explicit or implicit constitutional change been the dominating mode for achieving constitutional reform in EU member states? The key result of the study is that implicit constitutional change has been the more common method for bringing about constitutional change in the 26 EU member states researched. The mean value for all countries was 3.81 on the five-point scale meaning that constitutional change induced by EU membership has on average taken the form: “primarily implicit change with some elements of explicit change”. It is noteworthy, however, that the results reveal that in most member states we do find the use of both modes of constitutional change.

A second important result of the study is that we find substantial cross-national variation among the twenty-six countries. Far from all EU member states have chosen to regulate EU membership predominantly by way of implicit constitutional change. In fact, in three countries—Austria, Germany, and Slovakia—explicit constitutional change has been the predominant mode of constitutional reform. At the other extreme, we find a number of countries such as Denmark, Estonia, and Italy, which have relied almost exclusively on implicit constitutional change, and whose constitutions which are more or less silent on all aspects of EU membership. It is also noteworthy that four of the original member states—Belgium, Italy, Luxembourg, and the Netherlands—belong to the group of countries most prone to resort to implicit constitutional change as their preferred method for regulating EU membership.

Finally, the results also reveal that there are some clear differences when it comes to how different aspects of EU membership have been dealt with in terms of constitutional change. The countries in the study was in fact much more inclined to use explicit constitutional change to deal with issues linked with sovereignty (m=3.02) than to deal with those linked with representation (m=4.68) or with the exercise of EU competencies (m=4.26).

The fact that the constitution is the supreme law of the land makes it a matter of vital importance to understand how constitutional change is brought about. The systematic comparison of constitutional change undertaken in the current study thus revealed substantial differences between EU member states when it comes to how they have accomplished the constitutional change induced by EU membership. This cross-national variation calls out for theorizing on what may explain these differences. An urgent concern for future research is thus to work towards formulating testable propositions that may eventually lead up to a theory that can explain the varying use of explicit and implicit constitutional change in democratic political systems.

*The article “Comparing Constitutional Change in European Union Member States” was published in Journal of Common Market Studies, Vol. 52, No. 3, pp. 566-81.

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