On Constitutional Dismemberment

Written by Carlos Bernal
Colombian Constitutional Court

I

In Constitutional Amendment and Dismemberment, Richard Albert endorses four main claims: one conceptual, one descriptive, and two normative.

The conceptual claim is that there is a special kind of formal constitutional change: constitutional dismemberment. A constitutional dismemberment repudiates essential elements of a constitution—concerning its structure, identity, or core fundamental rights—and replaces them with opposite features without breaking legal continuity. A constitutional dismemberment differs from both a constitutional amendment and the promulgation of a new constitution. While an amendment aims to better an existing constitution, a dismemberment purports to unmake it. Moreover, the promulgation of a new constitution necessarily implies breaking legal continuity. A dismemberment necessarily implies not breaking it.

The descriptive claim states that “constitutional dismemberment” is a descriptive concept, not a normative one. A dismemberment can either improve or weaken democratic constitutionalism. Hence, it should not necessarily be the object of criticism or praise.

The first normative claim is that designers of rules for constitutional change should subject constitutional dismemberments to what Albert calls “the mutuality rule.” According to this rule, a constitutional dismemberment should only be permissible if it is undertaken through the same procedure that was used to promulgate the existing constitution. Thus, there should be at least two tracks for formal constitutional change: one for amendments, and one for dismemberments. The existence of a dismemberment track could foster legal continuity in times of crisis.

The second normative claim states that constitutional judges should not invalidate constitutional dismemberments if they comply with the mutuality rule. This claim to judicial self-restraint is grounded in the following assumption: whenever a constitutional dismemberment complies with the mutuality rule, then it is the constituent power that has changed the constitution. Constitutional judges should not invalidate the work of the constituent power.

II

The conceptual claim makes remarkable contributions to the field by proposing and spelling out the concept of “constitutional dismemberment.” Formal constitutional changes imply a modification in one or more constitutional provisions whose effect is a modification of an entire set of valid constitutional norms. Previously, scholars have referred to constitutional enactment, amendment, and explicit derogation as the conventional types of formal constitutional change. In addition, the literature and jurisprudence from various jurisdictions have used the concepts of constitutional “replacement,” “revision,” and “substitution” for designating formal constitutional changes that have been undertaken by means of the procedures for constitutional amendment but that imply an alteration to the basic structure of the constitution. Some of those changes can also give rise to what David Landau calls “abusive constitutionalism,” that is, “the use of mechanisms of constitutional change in order to make a state significantly less democratic than it was before.”[1]

Albert’s concept of constitutional dismemberment is a much clearer and more sophisticated tool for accounting for changes in the basic structure of a constitution. “Replacement” and “substitution” can refer either to the alteration of the basic structure of a constitution or to its derogation and a subsequent enactment of a new one. “Constitutional dismemberment” is not ambiguous in this sense. Moreover, due to its descriptive nature, “constitutional dismemberment” is able to account for formal constitutional changes that imply alterations to the basic structure without simultaneously amounting to an instance of abusive constitutionalism. An example of this would be the transformation of a federal into a centralized republic without altering the basic elements of democratic constitutionalism.

Finally, in a certain way, Albert’s normative claims can be interpreted as attempts to set a standard for achieving democratic legitimacy in processes of constitutional dismemberment. If a constitution was enacted by means of a process endowed with democratic pedigree, compliance with the mutuality rule would guarantee a comparable democratic pedigree of any constitutional dismemberment. Furthermore, in those cases, the claim to judicial self-restraint would ensure that constitutional judges do not obstruct the outcomes of democratically legitimate procedures of this kind by inserting themselves into the process. In this way, Albert’s normative claims entail defending democratic legitimacy in structural constitutional changes both from democratically deficient amendments and from judgments. Thus, this proposal would arguably capture the virtues of the theory of unconstitutional constitutional amendments without bearing its shortcomings. The mutuality rule would safeguard the work of the original constituent power both from political agents’ attempts to destroy it, and from judges’ attempts to invalidate new manifestations of the constituent power.

III

Nevertheless, I would like to raise seven objections to Albert’s claims. First, the concept of “dismemberment” has a negative connotation that links it to the language of destruction. For this reason, the talk of dismemberments that improve democratic constitutionalism—for instance, his reference to the Civil War Amendments to the United States Constitution—seems odd. The concept of “revision,” used by Albert in a previous paper, can avoid this semantic tension.[2] “Revision” can refer with clarity to formal constitutional changes that imply modifications to the basic structure of a constitution, either for strengthening or for weakening democratic constitutionalism.

Second, the plausibility of the descriptive nature claim is doubtful. Albert undertakes an analysis of the concept of “constitutional dismemberment” for the purpose of accounting for the essential properties of this phenomenon. However, raising the descriptive nature claim overlooks the fact that the possibility of normatively neutral conceptual analysis is highly contested.[3] Elucidating the nature of a constitutional dismemberment, and whether a constitutional change is an instance of it, implies taking a standpoint to justify or criticize that concept or their references. For instance, Albert praises the concept of dismemberment for fostering legal continuity. He assumes that legal continuity is desirable. In this way, he infuses a normative element into the descriptive claim. Ronald Dworkin’s view that the description of any phenomenon central to the law cannot be normatively neutral,[4] and that it is rather an “interpretation” grounded in moral judgments and beliefs,[5] applies here.

Third, the mutuality rule attempts to redeem the theory of the constituent power. On the one hand, this effort does not seem to be worthy at all. One of the greatest South American legal theorists of all time, Carlos Santiago Nino claimed that this theory was the source of a “serious conceptual disorder that negatively impacted scholars’ and judges’ thought processes.”[6] More recently, David Dyzenhaus argued that “legal and constitutional theory should avoid the idea of constituent power” because it results “in a deep ambivalence about whether authority is located within or without the legal order.”[7] What could then justify saving a flawed theory?

Even if this resurrection were desirable, it is not clear that the mutuality rule could accomplish that aim. Taking into account the undemocratic pedigree of many constitutions, it may be the case that what in t1 was considered as a manifestation of constituent power cannot be considered as such in t2. For instance, could a constitutional dismemberment of the German Basic Law undertaken by the exact procedure and by the same means through which it was enacted be considered as a manifestation of the current German constituent power? A dismemberment of the German Basic Law undertaken by means of a procedure replicating the drafting and enactment steps of 1948 and 1949 could not be attributed to the German constituent power. The initial procedure included deliberation between the three Western occupying powers (United States, United Kingdom, France) and three of Germany’s neighboring countries (Netherlands, Belgium, Luxembourg), as well as a consultation with the Ministerpräsidenten of the West German Länder, a discussion between the leaders of the Länder, the drafting by the Parlamentarischer Rat (integrated by sixty-five members elected by the Parliaments of the German Länder), and a ratification by the parliaments of all the Trizonal Länder.

Fourth, Albert attributes to the mutuality rule a role that it cannot play. Albert considers it as a normative directive. However, a closer observation reveals that it is an epistemological guarantee. The mutuality rule purports to identify the conditions under which it is certain that the constituent power has undertaken a constitutional dismemberment. This lacks any normative value unless the constitution has been created as a result of a process with democratic pedigree. Thus, from the perspective of democratic legitimacy, the mutuality rule is normatively over-inclusive. It can be used to justify undemocratic dismemberments of constitutions that were enacted in undemocratic ways but became democratically legitimate over time.

Fifth, Albert’s normative claims seem to overvalue legal continuity. Certainly, the dismemberment track claim fosters constitutional endurance, and this, in turn, favors legal continuity and stability. In the abstract, this is aligned with the purpose of democratic constitutionalism and of guaranteeing constitutional rights and the rule of law over time. However, sometimes other values can ground the realization of democratic constitutionalism and may overweigh legal continuity. For instance, in circumstances of anomie, in which existing norms are unsuitable for guiding society,[8] the process of enacting a new constitution could contribute to a democratic re-legitimization of the society much more than a constitutional dismemberment. This could also be the case when a dismemberment purports to abuse constitutionalism. In such circumstances, a revolution leading to a democratic process of drafting and enacting a new constitution could be preferable to the abolition or deterioration of democratic constitutionalism undertaken by means of dismemberment procedures, even when they are respectful of the mutuality rule.

Sixth, this final hypothesis is related to an objection to the claim of judicial self-restraint. According to the doctrine of constitutional dismemberment, judges should not rule that a dismemberment is unconstitutional if it respects the mutuality rule, even if it destroys democratic constitutionalism. From this perspective, this doctrine offers a weaker protection to democratic constitutionalism than certain interpretations of the doctrine of unconstitutional constitutional amendments. Elsewhere, I have claimed that judges should declare that formal constitutional changes are unconstitutional when they denature the constitution—for instance, when they abolish the entrenchment of constitutional rights, the rule of law, or the principle of separation of powers—or because they turn it into a constitution without constitutionalism.[9] Furthermore, when reviewing the constitutionality of formal constitutional changes, judges should use a standard that is respectful of the competences of the citizens, parliaments, and other political institutions and agents undertaking formal constitutional changes. According to this standard, the less a formal constitutional change is the result of a procedure observing the requirements of deliberative democracy, the more intensive the judicial review should be. Similarly, the more a constitutional amendment is the result of a procedure observing the requirements of deliberative democracy, the less intensive the judicial review should be. This standard better guarantees democratic legitimacy in constitutional changes that alter the basic structure of the constitution than the mutuality rule would.

Seventh, the doctrine of constitutional dismemberment aims to save the theory of the constituent power by fostering symmetry and legal continuity in formal structural constitutional changes. This goal misses the target of normative theories of constitutional change, which should be to safeguard democratic constitutionalism. There are several versions of the theory of the constituent power.[10] Their common element is the thesis that the constitution-making power is foundational, legally boundless, and sovereign.[11] From Albert’s doctrine would follow that constitutional dismemberments compliant with the rule of mutuality should meet these criteria. Hence, judges would lack the competence to invalidate them. This does not sufficiently safeguard democratic constitutionalism from attempts to undermine it through formal, structural constitutional changes. There can be dismemberments compliant with the mutuality rule that, at the same time, lead to a transformation of a democratic constitution into an illiberal one. In this sense, the doctrine of constitutional dismemberment can window-dress or legitimize episodes of authoritarian constitutionalism. Normative constitutional theories should attempt to devise guidelines useful for the preservation of the essential elements of a democratic constitution during processes of constitutional change. The doctrine of constitutional dismemberment clearly falls short of that goal.

IV

In sum, Albert succeeds in identifying a category referring to formal structural constitutional changes that lies between the creation of a new constitution and a constitutional amendment, and in spelling out its properties by means of the concept of constitutional dismemberment. This concept, associated with the mutuality rule, also may preserve the democratic legitimacy of a constitution with democratic pedigree from political agents and judges, by requiring that formal structural changes be undertaken only by means of the same procedures for drafting and enacting the constitution.

Nevertheless, the concept of dismemberment has a negative connotation and normative aspects that are at odds with the intended descriptive nature. Furthermore, the doctrine associated with it has normative shortcomings. It overvalues legal continuity. Also, the mutuality rule purportedly assures that formal structural constitutional changes will be undertaken by the constituent power. However, it may be the case that what in t1 was considered as a manifestation of constituent power cannot be considered as such in t2. That rule may impose undemocratic requirements for the dismemberment of constitutions lacking democratic pedigree. Finally, as a normative principle it falls short in constraining formal structural constitutional changes that attempt to undermine democratic constitutionalism.

[1] David Landau, Abusive Constitutionalism, 47 U.C. Davis L. Rev. 189, 195 (2013).

[2] See Richard Albert, Amendment and Revision in the Unmaking of Constitutions (Bos. Coll. Law Sch. Legal Studies Research Paper Series, Paper No. 420, 2017), https://papers.ssrn.com/sol3/papers2.cfm?abstract_id=2841110.

[3] See Andrei Marmor, Legal Positivism: Still Descriptive and Morally Neutral, 26 Oxford J. Legal Stud. 683 (2006). For a broader discussion, see Neutrality and Theory of Law (Jordi Ferrer Beltrán, José Juan Moreso & Diego M. Papayannis eds., 2013).

[4] Ronald Dworkin, Justice in Robes 140-41 (2006).

[5] Ronald Dworkin, Justice for Hedgehogs 404 (2011).

[6] Carlos Santiago Nino, El concepto de poder constituyente originario y la justificación jurídica, in El lenguaje del derecho: homenaje a Genaro R. Carrió 40 (Eugenio Bulygin et al. eds., 1983).

[7] David Dyzenhaus, Constitutionalism in an Old Key: Legality and Constituent Power, 1 Global Constitutionalism 229 (2012); see also David Dyzenhaus, The Politics of the Question of Constituent Power, in The Paradox of Constitutionalism 130, 143-45 (Martin Loughlin & Neil Walker eds., 2008).

[8] On the concept of anomie, see Émile Durkheim, Le suicide. Étude de sociologie 264-311 (1897).

[9] Carlos Bernal, Unconstitutional Constitutional Amendments in the Case Study of Colombia: An Analysis of the Justification and Meaning of the Constitutional Replacement Doctrine, 11 Int’l J. Const. L. 339 (2013).

[10] Antonio Negri, Insurgencies: Constituent Power and the Modern State 4 (1999).

[11] See Joel I. Colón-Ríos, Five Conceptions of Constituent Power, 130 L.Q. Rev. 307 (2014).

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