Constitutional Amendment or Constitutional Alteration?
Sweden became member of the European Union on 1 January 1995. This basic fact, however, is not mentioned in Sweden’s fundamental law. Nor does the Swedish constitution have anything to say about the important changes to the practice of public policy-making that have taken place since Sweden joined the EU. At the same time, it is indeed apparent that the basic rules of the political game in Sweden have been transformed dramatically after EU accession. This constitutional change, however, has taken place without any substantial changes being made to the wording of the most important of Sweden’s four fundamental laws, i.e. the Instrument of Government (regeringsformen).
Constitutional change can be brought about in two different ways: Constitutional amendment, or explicit constitutional change, refers to a change of the rules of the game which implies a modified wording of the constitutional text. Constitutional alteration, or implicit constitutional change, means the constitutional document itself remains unaltered while its meaning is changed through judicial interpretation or legislative action.
How frequently used are these different methods when it comes to the constitutional changes brought about by EU membership? How can we explain the differences between member states? How can these competing methods for constitutional change be normatively justified? Is one of them to be preferred?
Christer Karlsson, Department of Government, Uppsala university
2009-2013
The main aim of this project has been to increase our knowledge about how constitutional change is brought about and what explains cross-national variation in the use of different methods for achieving constitutional reform. The project has examined how European Union member states have handled the adaptational pressure and demands for constitutional reform that follow from membership in the EU. In order to explore this issue a vast data material has been collected and then coded. The project has proceeded from the assumption that constitutional change can be brought about in two fundamentally different ways: either by changing the wording of the constitutional document (explicit change/constitutional amendment), or by changing the meaning of the constitution while leaving the constitutional text itself unaltered (implicit change/constitutional alteration).
The importance of this key distinction for understanding constitutional change has in fact been recognized for a long time, and studies have shown that both kinds of constitutional change occur regularly in modern democracies. Still, no systematic research efforts have been deployed to examine the use of these competing modes for bringing about constitutional change. Hence, we know precious little about empirical patterns of constitutional politics in terms of whether reforms usually come in the form of explicit or of implicit change. The first and descriptive part of the project has helped to rectify this lacuna by examining to what extent member states of the EU have used explicit and/or implicit constitutional change when reforming their constitutions in light of EU membership. The second part of the project seeks to develop a theory of constitutional change; it does so by formulating and testing a number of rival hypotheses about what explains cross-national variation in the use of different methods for achieving constitutional reform.
The projected has collected and coded data for nine different aspects of constitutional change linked to three key issues: sovereignty, representation, and the exercise of EU competencies. Data was gathered by making use of a vast number of sources including the constitutional document, judicial sentencing, ordinary laws, declarations and agreements - written or oral. For all nine variables values were assigned according to a five-point scale ranging from (1) exclusively or predominantly explicit change with minor or no elements of implicit change to (5) exclusively or predominantly implicit change with minor or no elements of explicit change.
The three most important results of the result
The first important result from the project is that implicit constitutional change has been the dominant mode of constitutional change used by EU member state to adjust to membership. The mean value for all countries was 3.81 on the five-point scale, i.e., we find on average that the constitutional change induced by EU membership in the twenty-six countries has primarily taken the form of implicit constitutional change, but with some elements of explicit change.
A second important result is that there exists substantial variation between member states and the three aspects of EU membership when it comes to what is the more commonly used mode of constitutional change. Explicit constitutional change has in fact been the dominant mode of constitutional change in some countries such as Austria, Germany and Slovakia, whereas the constitutional text in other countries--e.g. Italy, Denmark and Estonia--is almost completely silent on EU membership. There are also systematic differences between the three aspects of EU membership when it comes to what is the more commonly used mode of constitutional change. The sovereignty aspect is more extensively dealt with by resorting to explicit change whereas implicit change dominates the regulation of representation as well as the exercise of EU competencies.
A third important result relates to the question of what explains cross-national variation in the use of explicit and implicit constitutional change. On the basis of the explanatory analysis the project may conclude that there are three factors that are key for explaining constitutional change: constitutional rigidity i.e. how difficult it is to amend the constitutional text, the mean number of parties included in the cabinet, and the public support for European integration. Roughly one third of the cross-national variation between EU member states when it comes to the use of different methods for achieving constitutional reform can be explained by these three variables.
New research questions generated by the project
This project has generated at least two new important questions that warrant further research. The first question relates to the extent to which the results of the study may be representative for how constitutional change is accomplished in modern democracies. The question of how constitutional reform that follows from membership in the EU has been dealt with can hardly be said to be representative for all the issues that are dealt with constitutionally in modern democracies. It is accordingly important to conduct further comparative research in connection to other issues. The current project has examined constitutional change at one specific point in time, but there is also a need to examine constitutional change as a process to learn more about how explicit and implicit constitutional change complement each other as methods for reforming constitutions.
The two most important publications of the project
The article "Comparing Constitutional Change in European Union Member States: In Search of a Theory" (Karlsson 2014a) describes systematically how constitutional change is carried out in EU member states and also includes a discussion on which factors may help explain cross-national variation. The article is accepted for publication in Journal of Common Market Studies and will appear in an early 2014 issue of the journal. The follow-up piece "Explaining Constitutional Change: Making Sense of Cross-National Variation among European Union Member States" (Karlsson 2014b), develops and tests five hypotheses about what may explain constitutional change. This article as well is scheduled to appear in a peer-review international journal. In addition, the main results of the project will also be presented in a publication in Swedish.
Publications
Karlsson, Christer. 2010a. “Hur regleras EU-medlemskapet?”, "Statsvetenskaplig tidskrift", vol. 112 (1), 41-50.
Karlsson, Christer. 2010b. “The Convention Method Revisited: Does It Have a Future and Does It Matter?”, "European Law Journal", vol. 16 (6), 717-735.
Karlsson, Christer. 2014a. ”Comparing Constitutional Change in European Union Member States: In Search of a Theory”, Journal of Common Market Studies (forthcoming), finns på early view: http://onlinelibrary.wiley.com.ezproxy.its.uu.se/doi/10.1111/jcms.12098/pdf.
Karlsson, Christer. 2014b. ”Explaining Constitutional Change: Making Sense of Cross-National Variation among European Union Member States” (manuskript).