Constitutional Reform: Understanding Derived Constituent Power

The Derived Constituent Power: Reforming the Constitution

A constitutional text is implemented, and with diverse content in place, legislatures begin every four years, and elections are called. A constitution lasts for the duration; there is no deadline.

The EC (presumably, the existing constitution) should ensure stability and a standard duration through rigid constitutional mechanisms.

To change the EC, one has to modify it and create another. Legal norms are norms amending constitutions, flexible, but usually not changed like the rest of the rules. They establish special mechanisms to stiffen constitutional amendment. This is implemented in two ways:

Intangibility clauses: For example, the German constitution cannot be reformed in ways that affect fundamental rights or the social and democratic state of law. Formal or procedural way: This establishes a series of procedures that hinder the reform process. These procedures are very expensive and difficult to attempt.

Reference to the EC in the arts. EC 166 et seq.

1) The initiative to undertake the reform of the EC:

Government / Congress / 50 senators from different parliamentary groups / autonomous parliaments / Excludes initiative. 1 / 5 of deputies, two parliamentary groups of the Congress.

2) Materials to be changed: No intangibility clauses: You can change throughout the EC and do something new or partially modify the existing EC.

3) Procedures (depends on what you want to change):

Article 168 EC: Review procedure or worse: when you want to modify the EC completely or partially, affecting the Preliminary Title, Chapter II, Section One of Title I, or Title II. Includes basic principles, fundamental rights, and the Crown. It requires a majority of 2/3 of each chamber. Once done, there is the dissolution of Parliament, followed by the calling of elections. We choose a new Parliament to ratify the decision and begin a study of the new constitution to be approved also by 2/3 parts of each camera. Then, a popular referendum is held to ratify the amendments proposed and approved in Parliament.

Procedures: 2/3 of each house in the elections. No one has achieved such a majority (233 deputies), so our electoral system does not give sufficient majority to allow the reform of the EC. No one ever will have a majority to change it. It takes time, a consensus of various political forces; the percentages are significant.