Coordinator: Rubén García Higuera (GIDyJ researchers)

Comments: Mariano C. Melero (UAM)

From the dawn of modern constitutionalism, authors such as Emmanuel de Sieyès developed an argumentative sequence linking the existence of a subject, usually referred to as sovereign, endowed with a will, with which it creates legal norms, in particular the constitution. This proposal is at the basis of the hypothesis -fabulation for some- of an original constituent power whose nature and limits are impossible or difficult to establish, and which is thought of in opposition to the constituted powers, which by nature have a limited character. Halfway between one and the other appears the derived constituent power or reform power, which seems to have a hybrid character between the two previous ones. Discussions about this power of constitutional reform have a complex philosophical, political and legal background, and to a large extent have dealt with the possible intrinsic or extrinsic limits to it, which we will discuss in this working group. Objectives: In this working group we intend to discuss the political and legal theories about the power of constitutional reform and its limits. Broadly speaking, the topics of discussion would be the following:

• lthe reform procedures or devices analyzed from the point of view of their democratic legitimacy: referenda, qualified majorities, cooling-off clauses;
• the existence or not of substantive (not exclusively formal) limits to the power of constitutional reform. Bruce Ackerman, for example, rejects such limits and understands as constitutional amendments the "reconstituting" moments of a political community;
• if such limits exist, what would be their theoretical foundation: the doctrine of the "basic structure" of the constitution (Carl Schmitt), the theory of fundamental rights as "constitutional essences" (John Rawls); the theories of neo-constitutionalism (Gustavo Zagrebelsky, Luigi Ferrajoli, Carlos Nino).
• the question of the legitimacy of judges to annul a constitutional reform ("unconstitutional constitutional reforms");
• the debate on the possibility of achieving integration into a supra-state unit (such as the European Union) through reform procedures;
• the potential scope of constitutional reforms in the era of globalization and so-called cosmopolitan constitutionalism;
• the question of the possibility of channeling the disintegration of a state into autonomous political subunits through reform devices. 

Schedule:

Session 6, Session 6
Date:  Thursday, July 11, 2019
Hour: 15:30 - 16:45
Venue: Room 205

Session 7, Session 7
Date: Friday, July 12, 2019
Hour: 09:00 - 10:45
Venue: Room 205

Lectures:

• The reform of Article 135 of the Spanish Constitution
• The power of reform in the Spanish constitution: an a posteriori analysis of the disadvantages of the double reform procedure.
• The Constitution, between technique and politics. Some notes on the notion of constitutional reform.
• Longing for change. Economic globalization and constitutional reform
• War and positioning before international law in the Spanish Constitution. Notes for a reform
• Deliberation and majorities
• Constitutional Democracy, guaranteeism and reflexivity. A comparison between the theories of Luigi Ferrajoli and Pierre Rosanvallon.
• The questioning of the justification and legitimacy of judges to annul a constitutional reform.
• Constitutional reform or reform of parliamentarism? Hans Kelsen's proposal for the strengthening of representative democracy.