ISSN:
1572-9990
Keywords:
Positive constitutional economics
;
implicit constitutional change
;
bargaining power
;
judicial discretion
;
independent judiciary
;
commitment capability
Source:
Springer Online Journal Archives 1860-2000
Topics:
Law
,
Economics
Notes:
Abstract Constitutional change is often thought of as explicit constitutional change, i.e., as change that implies a modified wording of the constitutional document. In this paper, the possibilities of implicit constitutional change, i.e., change that is not accompanied by formally changing the constitution, are analyzed. The separation of powers a la Montesquieu is taken as a starting point and it will be argued that constitutional change can be brought about by all government branches, i.e., by the executive, the legislature, and the judiciary. If this argument is accepted it follows that the judiciary-even when endowed with the competence of judicial review-is not the ultimate arbiter in supervising constitutional change. It is the main hypothesis of this paper that the judiciary in bringing about implicit constitutional change is subject to a number of constraints among which the original document plays a rather marginal role. Instead, it is claimed that the current preferences of the other government organs as well as those of the population are more relevant in ascertaining the meaning of the constitution at a given point in time.
Type of Medium:
Electronic Resource
URL:
http://dx.doi.org/10.1023/A:1008724612813
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