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Is There a Need for an Amending Power Theory?

Published online by Cambridge University Press:  12 February 2016

Claude Klein
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Extract

In his case note on the famous Bergmann decision of the Supreme Court, Professor Akzin wrote:

While the Court's conclusions seem to be perfectly justified and went so far as they could in the circumstances, the reasoning in its decision shows serious flaws… [others] seem to have sprung from the Court's unwillingness to look for help to the very thorough discussion of the issues by several Israeli scholars, notably Messrs. Sternberg, Akzin, Klinghoffer and Rubinstein. The dignity of the Court would not have suffered if the opinion-writing judge had taken a look at academic writing in a case where precedents offer little or no guidance.

These remarks probably express the most original view ever put forward on this land mark case. They emphasize the crux of the complex constitutional problem discussed in the Bergmann case, i.e., the definition of the legal nature of the basic laws in the legal order of Israel. The extremely abstract questions involved in that discussion, indeed, the most abstract that exist in public law, concern the definition of the nature of the power which adopts the Constitution and more specifically, of the power which amends the Constitution.

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Articles
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Israel Law Review , Volume 13 , Issue 2 , April 1978 , pp. 203 - 214
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Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1978

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References

1 (1969) 4 Is.L.R. 577.

2 The various views which have been expressed concerning the issue of Basic Laws are discussed in two articles by Prof. C. Klein, “A New Era in Israel's Constitutional Law” (1971) 6 Is.L.R. 376, and “The Constitutional Power in Israel” (1970) 2 Mishpatim 57.

3 Baker v. Carr, 369 U.S. 186 (1962); Reynolds v. Sims, 377 U.S. 533 (1964); special attention should be paid to Lucas v. Colorado General Assembly 377 U.S. 713 (1964): in that case the Supreme Court invalidated the Colorado apportionment system, despite the fact that it had been approved by a referendum in which the exclusively population-based apportionment system was rejected and instead, another plan adopted. It will be shown that some discussions arose at the time of the adoption of the 18th and the 19th Amendments.

4 According to Article 5 of the Constitution of the United States: “The Congress whenever two-thirds of both House 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 the Constitution, when ratified by the Legislatures of three-fourths of the several States, or by Convention in three-fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress…

5 Another “convention” channel has once been used: the 21st Amendment was ratified by State Convention in 1933. See the compilation of Brown, Everett Sommerville, Ratification of the 21st Amendment to the Constitution of the U.S. (Ann Arbor, Michigan, 1938).Google Scholar

6 By March 1967, 32 petitions had been submitted by the States (the constitutional requirement is two-thirds of the States, i.e., 34. See New York Times, 18 March 1967. See also Ervin, Sam Jr., “Conribution to the Symposium on the Article 5 Convention Process” (1968) 66 Michigan L.R. 875.CrossRefGoogle Scholar

7 See for instance the study of Lester Orfield, B., The Amending of the Federal Constitution (A collection of articles which had been previously published in various reviews) (1942)Google Scholar; also Corwin, E. and Ramsey, M.L., “The Constitutional Law of Constitutional Amendments” (1951) 26 Notre Dame Lawyer 185Google Scholar; basically one should always refer to the classical and monumental study of Jameson, J., A Treatise on Constitutional Conventions (4th ed. 1887, re-ed., 1972).Google Scholar It might well be a sign of the times that that classic of American constitutional literature was re-edited in 1972. It should also be stressed that special attention had been devoted to a particular aspect of the amending process: the justiciability of the amendments and of the process itself. This has been so, particularly since the adoption of the 18th Amendment.

8 A number of bills had been introduced after the apportionment cases, the best known being the Ervin Bill; see a note, “Proposed Legislation on the Convention Method of Amendment of the U.S.Constitution” (1971–72) 85 Harv. L.R. 1612; see the sharp criticism of Black, Charles, “The Proposed Amendment of Article 5: A Threatened Disaster” (1963) 72 Yale L.J. 957CrossRefGoogle Scholar; see further the letter to a Congressman by Charles L. Black on the same subject in (1972–73) 82 Yale L.J. 189.

9 In any case, ratification by three–fourths of the States would be required.

10 Roe v. Wade, 410 U.S. 113 (1973); Doe v. Bolton, 410 U.S. 170 (1972).

11 See echoes of the controversy in a letter by Bromley, Dorothy Dunbar in the New York Times, 29 August 1977Google Scholar and in the letters in reply to it by Dan Buckley (Chairman, Americans for a Constitutional Convention) and Professor Charles L. Black Jr., 19 September 1977.

12 See New York Times, 10 October 1977; actually, the Supreme Court had ruled in Dillon v. Gloss, 256 U.S. 368 that even if Congress had made the time limit part of the Amendment itself, in fact, the time limit proposed would not be considered a part of the Amendment. This seems quite obvious since the Amendment itself is inoperative until ratified.

13 See for instance, the 20th, 21st and 22nd Amendments.

14 See New York Times, 5 November 1977: testifying before the House Judiciary Committee, Prof. Thomas I. Emerson argued that Congress could extend the ratification period by a simple majority vote of each House. But Prof. Charles L. Black held that an extension would require a two-thirds vote of each House. The question of knowing whether a State may rescind its ratification is also under discussion.

15 Sec. 89 provides: “The initiative for amending the Constitution shall belong both to the President of the Republic on the proposal of the Premier and to members of Parliament.

The Government or Parliamentary bill for amendment must be passed by the two Assemblies in identical terms. The amendment shall become definitive after approval by a referendum.

Nevertheless, the proposed amendment shall not be submitted to a referendum when the President of the Republic decides to submit it to Parliament convened in Congress; in this case, the proposed amendment shall be approved only if it is accepted by a three-fifths majority of the votes cast. The Secretariat of the Congress shall be that of the National Assembly.

No Amendment procedure may be undertaken or followed when the integrity of the territory is in jeopardy.

The Republican form of government shall not be subject to Amendment”.

16 This was the Conseil d'Etat's opinion. Only one law professor argued for the constitutionality of the amendment. See Lampue, Pierre, “Le mode d'élection du Président de la République et la procédure de l'article 11” (1962) Revue du droit public 931Google Scholar; the majority opinion has been expressed by Prof. G. Berlia, “Le problème de la constitutionalité du referendum du 28 Octobre 1962” ibid., 936. The classical text books all condemn the procedure.

17 See Vedel, G., Le Monde 26 and 27 July 1968Google Scholar, 22 December 1968; but see also Duverger, M., Le Monde 23 December 1968Google Scholar and Prelot, Marcel, Le Monde 15 March 1969.Google Scholar

18 See (1962) Journal Officiel 10778; see also: Favoreu, Louis and Philip, Loïc, Les grands arrêts du Conseil Constitutionnel (1975) 181.Google Scholar

19 See our article “A New Era…” (supra n. 2) and more specifically on that question “Special Majority and Implied Repeal” (1973) 28 HaPraklit 563.

20 For instance in Tunisia in 1969 see Ladhari, M., “La Revision de l'article 51 de la constitution tunisienne du 1er juin 1959” (1970) 24 Revue juridique et politique indépendence et coopération 307.Google Scholar

21 Sec. 78 of the Constitution of 1871 reads: “Amendments of the Constitution are had by way of legislation. They shall be considered as rejected if there have been fourteen votes against them in the Bundestrat. Those provisions of the Imperial Constitution by which certain rights of Individual Members of the Federation in their relations to the whole are determined, can be amended only with the consent of the Member of the Federation entitled to said rights”.

22 Sec. 76 of the Weimar Constitution of 1919 reads: “The Constitution may be amended by legislation. But decisions of the Reichstag as to such amendments come into effect only if two-thirds of the legal total of members be present, and if at least two-thirds of those present have given their consent. Decisions of the Reichsrat in favour of amending the Constitution also require a majority of two-thirds of the votes cast. Where an amendment of the Constitution is decided by an appeal to the people at their request, the consent of the majority of voters is necessary. Should the Reichstag have decided upon an amendment of the Constitution in spite of the Reichsrat, the President of the Federation is not allowed to promulgate this law if the Reichsrat, within two weeks, demands an appeal to the people”.

23 Article 44 of the Austrian Constitution states: “1) Constitutional laws or constitutional provisions contained in ordinary laws may be enacted by the Nationalrat only in the presence of at least one half of its members and by a majority of two-thirds of the votes cast. They shall be explicitly designated at such (“constitutional law, constitutional provision”). 2) Any total revision of the Federal Constitution shall upon conclusion of the procedure under Article 42, before, however, authentication by the Federal President, be submitted to a referendum by the entire people of the Federal State; but a constitutional amendment need be so submitted only on demand of one third of the members of the Nationalrat or of the Bundesrat”.

24 See Article 79 of the Basic Law: 1 ) This Basic Law can be amended only by a Law which expressly amends or supplements the text thereof … 2) Such a law shall require the affirmative vote of two-thirds of the members of the Bundestag and two-thirds of the votes of the Bundesrat… 3) An Amendment of this Basic Law effecting the division of the Federation into Länder, the participation in principle of the Länder in legislation, or the basic principles laid down in Articles 1 and 20, shall be inadmissible.

25 The Constitutional Court accepted without discussing the point of reviewing an Amendment, although the petition was dismissed on the merits. It was particularly important since the Amendment allowed wire-tapping in certain cases.

26 For instance, the questions which relates to the nature of a (constitutional) convention.

27 Sheips, Paul J., “The Significance and Adoption of Article 5 of the Constitution” (1951) 26 Notre Dame Lawyer 46, 48.Google Scholar

28 Disregarding the Articles of the Confederation, which could be amended but only by unanimous consent. To the same extent, it may be said that there is nothing decisive or meaningful in the colonial States experience before 1776, or between 1776 and 1787. In Cromwell's Instrument of Government of 1653, there is no provision for revision.

29 See Annals of Congress (H. of R.) vol. 1, pp. 707–708.

30 The limitations appear at the end of Article Five of the Constitution “… Provided that no Amendment which may be made prior to the year 1808 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”.

31 (1919–20) 33 Harv. L.R. 223. See the reply of William L. Frierson, ibid. 659.

32 See the National Prohibition Cases 252 U.S. 350 (1920); Leser v. Garnett 258 U.S. 130 (1922).

33 There are some short theoretical developments in Jameson's Treatise on Constitutional Conventions, op. cit. supra n. 7.

34 In French the most recent edition is 1970, Librarie Droz, Genève; there is only one English edition under the name, What is the Third Estate? (edited by S.E. Finer, Pall Mall Press, London, 1963).

35 What is the Third Estate? at 130.

36 Ibid., at 131.

37 The basic studies on those theories of representation are (both in German) Redslob, Robert, Die Staatstheorien der französischen Nationalversammlung von 1789 (1922)Google Scholar and Lowenstein, Karl, Volk und Parliament nach der Staatstheorie der französischen Nationalversammlung von 1789 (München, 1922, re-ed., 1964).Google Scholar Redslob examines the link between the theory of the constituent power and that of the representation.

38 The most complete and almost definitive work on that theory of the pouvoir constituant is the classical work of Zweig, Egon, Die Lehre vom pouvoir constituant, Ein Beitrag zum Staatsrecht der französischen Revolution (Tübingen, 1909).Google Scholar

39 Original and derived constituent power.

40 See for instance, Duverger, Maurice, Institutions politiques et Droit constitutionnel (5th ed., 1960) 221Google Scholar; see also the famous treatise of Linares, V. Segundo, Quintana Tratado de la Scientia del Derecho Constitucional Argentino y Comparado (Buenos Aires) vol. 2, pp. 94, 143, 163.Google Scholar The classical Duez, Joseph-Barthelemy-Paul, Traite de droit constitutionnel (2nd ed., 1933) 188Google Scholar, also gives a very representative description of the accepted approach. See also the theoretical study of Heraud, Guy, L'ordre juridique et le pouvoir originaire (Paris, 1946).Google Scholar An old French study, dealing with American problems and which has been translated into English is also of interest, namely, Borgeaud, Charles, Adoption and Amendments of Constitutions in Europe and America (trans, by Hazen, , New York, London, 1895).Google Scholar

41 Schmitt, Carl, Verfassungslehre (1928, re-ed., 1954) 76, 82, 98.Google Scholar

42 Lowenstein, Karl, Erscheinungsformen des Verfassungsänderung (Tübingen, 1930).Google Scholar

43 Wesen, Uber, Technik and Grenzen des Verfassungsänderung (Berlin, 1961).Google Scholar

44 See for instance, Steiner, Udo, V erf assungs gebung und Verfassungsgebende Gewalt (Berlin, 1966)Google Scholar; Kratzmann, Horst, Die Verfassungsänderung, Dissertation (Hamburg, 1970).Google Scholar

45 Ehmke, Horst, Grenzen der Verfassungsänderung (Berlin, 1953)Google Scholar; Bachof, Otto, Verfassungswidrige Verfassungsnormen (Tübingen, 1951)Google Scholar; Zulch, Wilhelm, Das Verbot von Verfassungsänderungen nach dem Bonner Grundgesetz, Dissertation (Marburg, 1957).Google Scholar

46 See developments on those questions in modern German literature in Steiner, op. cit., at 180.

47 Schindler, Dietrich, Verfassungsrecht und soxiale-struktur (Zürich, 1932)Google Scholar and the more recent article by Schindler, , “Inhaltliche Schranken der Volksinitiative auf Verfassungsänderungen” (1956) 81 Archiv des offentlichen Rechts 486.Google Scholar

48 Kägi, Werner, Die Verfassung als Grundornung des Staates (Zürich, 1945, re-ed., 1971).Google Scholar See also the important communication of Prof. Kägi at the annual meeting of the Swiss lawyers (1956) published in Zeitshrift für Schweizerisches Recht (1956) 739 under the name: “Rechtsfragender der Volksinitative auf partialrevision” (Ein Beitrag zur Lehre von den inhaltlichen Schranken).

49 Haug, Hans, Die Schranken der Verfassungsrevision (Zürich, 1946).Google Scholar

50 For instance, one of the great masters of Swiss law: Burckhart, Walther, Einfuhrung in die Rechstwissenschaft (2nd ed., Zürich, 1936)Google Scholar; also a dissertation published in 1959, Camille Schmid, “Die Natur des Bestimmungen über die Verfassungrevision”. At the meeting of the Swiss lawyers in 1956, see the discussion between Prof. Kägi and Louis Dupraz at p. 800. There is also a discussion of the limits to the amending power in the classic Fleiner-Giacometti, , Schweizerisches Bundestaatsrechts (1949) 705 ff.Google Scholar More recently see, Aubert, Jean François, Traité de droit constitutionnel suisse (Neuchatel, 1967) 112 ff.Google Scholar

51 The “initiative” right in Switzerland is the right of the citizens to ask for the setting up of a constitutional referendum in order to amend the federal constitution. In order to hold such a referendum as of right a minimum of 50,000 signatures is required.

52 Sieyes, op. cit., at 125 ff.