Constitutional Reform: Procedures, Types, and Limits

Constitutional Reform: Adaptation and Modification

Constitutions are often created with the notion of permanence, yet survival requires reform and adaptation to changing historical and political realities. Therefore, constitutional modification refers to the formal process of reforming the fundamental law of the state.

Types of Constitutional Reforms

• Partial Reform: Only specific provisions or items are changed.
• Total Reform: Involves changing the entire constitution. This type is often categorized by two criteria:
  • Qualitative Criterion: Reforming key institutions of a country (e.g., a change in the political regime).
  • Quantitative Criterion: Reforming more than half of the articles of the constitution.

Intangibility Clauses and Cornerstone Terms

Intangibility refers to provisions within the constitution that prohibit the reform or modification of certain fundamental articles or principles.

The Second-Degree Reform Procedure

When attempting to change parts designated as intangible, a method known as the proceedings of the second-degree reform is sometimes employed. This involves a procedural mechanism where a protective clause is eliminated first, allowing the underlying provision to be subsequently altered.

This procedure typically involves two stages:

1. First Stage: Using the established constitutional reform process to abolish the specific intangibility clause that protects the provision intended for change.
2. Second Stage: Using the same reform procedure again, now that the protective clause is eliminated, to modify the necessary constitutional provision.

Methods of Constitutional Reform Formulation

The reform can take different forms:

• Literal Text Change: Directly modifying the existing text of the constitution. This is common in most countries.
• Amendment Addition: Creating a new article or section that addresses the desired change, often appended to the final text of the constitution (e.g., the United States model).

Constitutional Reform Procedures in Comparative Law

According to Biscaretti di Ruffia, constitutional reform can be initiated and executed by various national bodies:

Mechanisms Involving National Institutions

• Constitutional Convention: A special assembly convened specifically to draft or rewrite the constitution (e.g., the U.S. Convention of 1787).
• Legislative Bodies: Reform carried out by the existing legislature, such as the Congress and the Senate (e.g., Spain).
• The People: Direct involvement through popular initiative, referendum, or a combination of both (e.g., Switzerland).

Limits on the Power of Constitutional Reform

The constituent power is subject to serious legal limitations. These limits may include temporary conditions (e.g., prohibiting reform during wartime) or substantive clauses (which are not temporary).

Constitutional Mutation

Constitutional mutation occurs when the meaning or interpretation of the constitution changes without formally altering the text or following the prescribed amendment procedure. This phenomenon arises due to several factors:

• Introduction of New Political Practices: Practices that are not explicitly covered by the constitution.
• Institutional Gaps: Where the constitution fails to institutionalize certain political practices, leading to informal development.
• Practices Against the Constitution: Political actions that contradict existing constitutional provisions (e.g., practices that violate prohibitions against mandatory instructions).
• Desuetude or Disuse: When a constitutional provision empowers an action, but that power is consistently not applied or utilized.
• Judicial and Legislative Interpretation: Changes driven by evolving interpretations from the judiciary and the legislature.