Upper Houses and Constitutional Amendment Rules

Notwithstanding recent interest in the study of constitutional amendment rules, there is very limited scholarship investigating the structure of formal amendment framework and little doctrinal debate on the role of upper houses, as sub-national units’ representatives, played in national amendment process and their capacity to strengthen the rigidity of constitutions. It is well-known that amendment rules are at the core of constitutionalism, define the conditions under which all other constitutional norms may be legally displaced, and provide mechanisms for societies to refine their constitutional arrangements. It is also confirmed that the commonest form of representation in upper houses – in both federal and non-federal states – is territorial, and, in such systems, members generally represent areas contiguous with sub-national levels of government, provinces, regions or states. From an institutional framework view, this paper emphasizes the rules according to which the upper houses, as sub-national units’ representatives, boost constitutional revision processes identifying the patterns typically applied within domestic constitutional space. The analysis of amendment rules and the role of a Second Chamber in these processes in different European legal orders will allow for a comparison of the revision procedures on a higher level – the supranational one. First, assessing the advantages and disadvantages underpinning the reasons of sub-national units’ inclusion in constitutional amendment procedures, it presents some theoretical rationales. Examining the amendment rules and those mechanisms which gradually structure the constitutional rigidity, it identifies some national paradigms which can help to design (a) supranational paradigm(s) and make some remarks on the procedure of Treaty revision which encloses elements of rigidity. Although the EU is not a State and the Lisbon Treaty is not a Constitution, the comparison with the constitutional revision procedures of certain Member States, especially those with a decentralized structure, consents to analyze whether the mechanism of including national parliaments aggravates the Treaty amendment processes and to assess the impact on the quasi-constitutional configuration of the EU which deserves to be further developed in the perspective of the configuration of national legislatures as ‘territorial parliaments’ and their more incisive participation in the process of ‘formal European constitutional change’… (segue)