ICON S Conference 17 – 19 June 2016 Humboldt University Berlin

etween various shades of secondary constituent
powers along a ‘spectrum’; a theoretical construct
that links constitutional amendment procedures and
limitations which ought to be imposed upon constitutional
amendment powers. According to this spectrum
theory, constitutional systems are polymorphic:
the more similar the democratic characteristics of
the amendment powers are to those of the primary
constituent power, the less it should be bound by
limitations; and vice versa: the closer it is to a regular
legislative power, the more it should be fully bound
by limitations. This examination is an important step
towards a theory of unamendability.
Richard Albert: The Informal Amendment of
Formal Amendment Rules
In constitutional democracies, the entrenchment
of formal amendment rules is intended to reflect the
necessary and sufficient conditions to alter the constitutional
text. Yet in many constitutional democracies,
formal amendment rules have been informally
amended by judicial interpretation, legislative and executive
action, as well as by constitutional convention
to require constitutional actors to satisfy conditions
altogether different from what the text of the formal
amendment rules expressly requires. In this paper, I
explain and evaluate how constitutional actors have
informally amended formal amendment rules in constitutional
democracies.
Juliano Zaiden Benvindo: Playing with the
‘Timing’ of Constitutional Change: Of Courts,
Congresses and Individual Agendas
This paper examines how Congressmen and Justices,
sometimes in a symbiotic manner, negotiate the
pace of the constitutional agenda and the timing of
the constitutional change. It delves into some individual
strategies such as: a) a Justice asking for more
time to study further a case, adjourning the Court’s
final decision while Congress reacts by passing a new
legislation which will directly impair that ongoing decision
b) Congressmen not deliberating in the expectation
that the Supreme Court takes the first step in a
matter of strong political disagreement c) a Justice
granting an injunction in order to affect the pace of
the legislative process, among others. By focusing on
systemic and strategic behavioral analyses, this paper
will comparatively delve into examples as such in the
United States and Brazil. It aims to provide a relevant
discussion of how institutional design can nudge, and
sometimes fail to foster behaviors that may strengthen
constitutionalism at large.
Concurring panels 42