.

With the adoption of the constitutional document, there are different views among the constitutional theorists: someone says that,
with the adoption of the constitutional document, constituent power dissolves and someone else says that it remains lurking in the
background. It is dormant, in certain circumstances it can re-emerge and re-shape the constitutional order.
Historically, constituent power is conceived in popular terms, it is exercised by the nation. However, constituent power is not
necessarily popular in nature. So we can imagine other subjects exercising constituent power (a dictator, a clerical figure).

CONSTITUTED POWER → refers to the institutions established by constituent power, these institutions are entrusted with the
exercise of public power and having been established by constituent power, constituted power is legally bound, constrained.

Constituent power = people

Constituted power = government (as a creature of the Constitution made by the people)

Aversive and aspirational dimensions of constitution making: When a new constitution is adopted there are two dimensions to
be observed, aversive and aspirational dimensions visible in certain parts of constitutional texts, particularly in preambles or in
purposive constitutional norms (norms setting out a program or having a content expressing the ideology on the line of the
constitutional text).
AVERSIVE DIMENSION → a document is adopted typically because the previous constitutional regime produced discontent,
the new constitutional text departs from the previous one and expresses, to a different degree depending on the circumstances, a
certain level of rejection or repudiation of the previous constitutional experience. For instance, social state constitutions repudiate
the experience of totalitarianisms and liberal non-democratic constitutionalism.
ASPIRATIONAL DIMENSION → it goes to the aims, at the type of constitutional order it is imaginable and auspicable to be
implemented in the near future.

EX: Both aversive and aspirational elements in the 1996 South African Constitution
Preamble of the South African Constitution (1996)
We, the people of South Africa,   “we, the people” (expression borrowed by the US Constitution) = constituent power       
 Recognise the injustices of our past;   aversion towards Apartheid
Honour those who suffered for justice and freedom in our land;  reference to the freedom fighters in order to achieve the new constitutional order
 Respect those who have worked to build and develop our country; reference to the white minority which was losing in this constitutional-
making process. So there is the recognition of the injustices of the past (aversion) and respect towards the white minority.
Believe that South Africa belongs to all who live in it, united in our diversity *Aspirational part* There is an idea emerging and it belongs to
everyone.
We therefore, through our freely elected representatives, adopt this Constitution as the supreme law of the Republic so as to
Heal the divisions of the past and establish a society based on democratic values, social justice and fundamental human rights; = Aspiration 
Lay the foundations for a democratic and open society in which government is based on the will of the people and every citizen is equally
protected by law; 
Improve the quality of life of all citizens and free the potential of each person; and
Build a united and democratic South Africa able to take its rightful place as a sovereign state in the family of nations.
May God protect our people [...]
Both aversive and aspirational dimensions coexist.

Continuity and change in constitution-making processes: A process of constitution-making combines elements of continuity
and elements of change. So rarely, the exercise of constituent power is palingenetic, totally regenerated (palingenesis = total
renovation). It’s almost impossible that a new constitution makes tabula rasa of the previous constitutional experience.
What we observe also in the adoption of constitutional texts after the revolution, even in those circumstances, we find a certain
degree of reincorporation of selected constitutional materials from the previous experience because it‘s hard to break entirely with
the past, there are always some elements of continuity. Rosenfeld explains what the dilemma in this regard is: it’s necessary to
make some changes otherwise we would maintain the old document and yet we need a fresh start but not a radical new start. The
new constitutional identity must transform and reincorporate sufficient pre-constitutional material because it is impossible to
break completely with the past experience but it is also desirable not to do so in order to make people familiar with the new
constitutional text.

EX: in 1929 Mussolini signed with the Pope the so-called “Patti Lateranensi '' in which they regulated the troubles between Italy
and the Vatican State. With the birth of the Republic there is a selective reincorporation of previous materials.
One of the previous materials is exactly the Patti Lateranensi, article 7 refers to that international treaty while reframing the
context in which that agreement is going to operate. In 1929, the agreement stated that the Catholic Church was declared the only
religion of State, whereas this was no longer in the new constitutional setting and in 1984, there was an amendment of the Patti
Lateranensi in which it was recognised that Catholicism was not the only religion because Italy is a secular State.
So we have the selective reincorporation of an element and the following recontextualization.

Varieties of constitutional-making processes

INTERNAL CONSTITUTION-MAKING PROCESSES
INTERNAL → Constituent power is mainly exercised by autochthonous political actors (actors embedded in the political
community where the constitution is destined to operate). In this field there are certain submodels: 

a)Democratic or revolution-based constitution-making processes → the first element is “bootstrapping” related to the story of
Baron of Munchausen. He fell into a swamp, he had to pull the straps of his boots in order to re-emerge. In this context it means
that these constitutional systems emerge without the support of anything else, they are the genuine product of a community that
decides to adopt a constitutional text breaking with the previous constitutional experience, it does not lean on the previous
constitutional experience. It is a political break with the past because when a revolution takes place there is a change of the
constitutional regime. Also a legal break with the past takes place: most of the times revolutionaries act illegally from the
perspective of the previous constitutional order because they do not recognise the legitimacy of the previous order and their
attempt is to break with that.
There are typically two ways in which constituent power can be exercised by the people in a democratic way:
Indirectly → when a constituent assembly or a convention (ad hoc political bodies established to draft a constitutional text and are
not meant to last) is established. Once the constitutional text is adopted, the political bodies organised to draft the constitution, the
task has been fulfilled and there is no need to retain the assembly or the convention. Assembly or conventions are bodies where
people exercise indirectly the constituent power because there are just representatives of the people sitting in a constituent
assembly.
Directly → there are also circumstances in which constituent power is exercised democratically involving directly the people,
when a referendum is held to approve a new constitutional text.

In both circumstances, when people are directly and indirectly involved, we observe, in revolutionary times, a high level of
political mobilisation.
Revolutions are times where people are distracted from their ordinary lives and mobilise because it is a radical moment in politics;
this gives a high degree of political energy to the exercise of constituent power and to democratic constitutions.
These constitutions start with a high degree of energy and legitimacy but have to deal with two distinct problems: 
-Securing the loyalty of the loser because otherwise the constitutional text would be perceived as deprived of sufficient
legitimacy.
-The second matter is the fading away of the initial political energy of the original founding fathers. These founding fathers have a
high level of legitimacy which is going to fade away. At that point the constitution will have a legitimacy to not take for granted. 
If a democratic constitution succeeds in generating a constitutional culture, it is highly likely it won’t be modified; by contrast if
that culture does not emerge or is wiped out, the constitution will enter a constitutional crisis.

EXAMPLE OF INDIRECT POPULAR INVOLVEMENT: ITALY (1943-48)

In 1943 after the fall of Fascism, a provisional constitution was adopted and established that there would have to be a referendum
to decide if retaining the monarchy or shift to republican regime and that a constituent assembly had to be voted and its task was
to draft a new constitutional text. Both the referendum and the election of the constituent assembly were held on 2nd June 1946.
There was a brand-new ad hoc body called constituent assembly and only one constraint, the outcome of the referendum. In the
referendum the Republic prevailed over Monarchy so the constituent assembly worked for over a year and drafted a new
constitutional document. The constitutional text was voted by 90% of the constituent assembly and no popular referendum was
held because the assumption was that the constituent assembly had been elected and the political parties, represented in it, enjoyed
a high degree of representativeness. The membership of political parties at the time was remarkable, so there was no need to
involve directly the people the moment in which political parties had agreed on it in the assembly.
The working of the constituent assembly operated under the veil of ignorance (Rawls), a condition favouring decisions based on
moral considerations rather than on particular interests. Under the veil of ignorance, the constitution that is being produced will
not be biased, it will be grounded on moral considerations.
Why did the “veil of ignorance” favour the adoption of the constitution? The parties that rolled the constitution were uncertain
about which party would have won the election.
When the constituent assembly was elected, there was a party leading (DC, the Christian-democrats) but this majority was relative
and there were other political forces which appeared to be particularly influential (the Socialists and the Communists). 

EXAMPLE OF DIRECT POPULAR INVOLVEMENT: FRANCE (1958)

In 1945, the Resistance movement in France was formed by two forces: on one side De Gaulle and on the other hand the left-wing
parties, Communist and Socialist parties. In the same year a decision is taken: a referendum will be held and it will ask the citizens
whether to retain the Constitution of the 3rd Republic or to write a new constitutional text. Whether to retain the norms adopted in
the aftermath of the Franco-Prussian War (1871) or to shift to a new constitutional order, the latter option prevailed.
There was this first referendum which led to the adoption, through a constituent assembly, of a new constitutional text which was
not approved. It was subjected to a referendum. After the failure of this referendum, a new text was drafted and approved (1946,
the beginning of the 4th Republic.). First referendum → gets rid of the 3rd Republic. Second referendum → on the first draft of
the constitution which fails, the text was influenced by the Communists and the Socialists. Third referendum → new constitutional
text approved. The discontent for the approval of the new constitution comes from General De Gaulle, he disagreed with the main
political parties and in 1946 he gives the Bayeux Speech in which he expresses his insatisfaction towards the text of 1946 because
he thinks it assigns too much power to the Parliament. He expresses his preference for an alternative constitutional system
securing more power to the executive (=President of the Republic). He rejects the Parliamentary government because the
experience of the 3rd Republic, which followed that model, had been revealed to be rather unstable.
Therefore, the executive in that form of government was not equipped to secure a firm lead of government.
The main political parties started operating under the 1946 Constitution and what De Gaulle had predicted turned out to be
correct: in the period between 1946 and 1958 France recorded twenty-one different cabinets, a condition of instability.
In 1958, this condition of instability came to a head with the rebellion in Algeria and the following war of independence, French
people tried to resist then admitted that retaining Algeria within France cost too much.
However, the decolonization was opposed by the army and the colonists living in Algeria and therefore the risk of a coup d’état
emerged in 1958.In order to prevent the plan by a part of the army to subvert the 4th Republic, the president of the Republic asks
the assistance of De Gaulle who is offered the position of Prime Minister. In fall 1958 a referendum on the new text was held. The
left-wing parties’ campaign against the new constitution claiming it establishes a president with too much power, a sort of elected
monarch but they lose. 71% of the people go to the poll, so they are directly involved and endorse the new constitutional text
which is still employed but was subjected to some amendments.
So this is the example of a charismatic leader emerging and bringing about a democratic revolution with a new constitutional
regime centred on the role of the head of state, the President of the Republic. In this process the people are directly involved by
means of a referendum. There is no constituent assembly, no convention: the text is drafted by the acolytes of the Head of State
and then it is just presented to the people.

b)Federal processes → constituent power is exercised by autochthonous political actors but these political actors are not political
parties or charismatic leaders. The people are involved in some ways but do not play the key role. The political actors are states
willing to set up a federation. The idea is a coming-together to set up a federation, in the US case, a federal state.
The constituent subjects are the sovereign states conferring sovereign power to a federation, this is the crucial element. 
In federal processes we observe the birth of a federal state out of a coming together (coming together = process in which states
that used to be independent, decide to confer sovereignty to the federal state, to a higher level of government).
Fifty states once independent came together to form a federal state, the US. 
Federal Big Bang = start of a federation, a political process where what used to be independent states confer their sovereignty to
the newly built federal state and become federated entities.
1st step : independent sovereign states decide to confer power to a federal state with this coming-together.
2nd step : the federal states just established are transformed into federated entities, no longer independent.

UNITED STATES OF AMERICA: HOW DID THEY BECOME A FEDERAL STATE?

A starting point is the Declaration of Independence (1776), the thirteen states forming the US used to be British colonies that
rebelled against Great Britain (under the slogan “no taxation without representation”), they were taxed without the possibility to
be involved and represented. This led to the eight-year American revolutionary war and the thirteen colonies won the war
ultimately and became independent states. At that point, on the one hand these newly established states start engaging with
constitution-making, gradually each one of these states approve their own state-constitution. Simultaneously, the governments of
these states find that some sort of coordination is needed, they decide to retain the cooperation they had shared during the war
with other states, by setting up a confederation. In 1781, an international treaty was concluded between the thirteen governments,
a treaty establishing the so-called “Articles of Confederation and Perpetual Union”, a treaty established in a confederation meant
to last for indeterminate time (=perpetual union).

Confederation = subspecies of a federation, characterised by the fact that the member units remain sovereign, sovereignty remains
at the periphery. The 13 states are independent, the confederation is set up in order to cooperate and share certain tasks and
competences but they retained sovereign power.

The “Articles of Confederation” operates in two fields: military affairs and economic cooperation so in the 1780s we observe the
process in which independent states set up their own constitution and, at the same time, they ratify the “Articles of Confederation
and Perpetual Union” in order to organise a confederation. The Articles of Confederation was dysfunctional and particularly it
was hard to coordinate policies and to finance the common institutions. Confederations do not have the power to raise taxes to
finance policies and they depend on transfers from the states’ budget but not all the states were compliant with transferring
resources to the confederation, which suffered a lack of resources.  In order to fix the issue, a certain set of amendments was
proposed by the members of the “Articles of Confederation” in order to increase the fiscal capacity of the confederation. Yet,
these amendments were rejected and therefore a convention was established. The first convention in Annapolis fails and the
second in Philadelphia is the one that adopted the US Constitution. One of the key-provisions of the “Articles of Confederation”,
article 13. It is the provision that regulates the amendment of “Articles of Confederation”. 

But how is the amendment regulated by Art. 13?

ART. 13 → the provision regulating the amendment of the Articles of confederation. The amendment is regulated in the following
way:
1)The members of the “Articles of Confederation” are able to amend only specific parts of this treaty, so a total amendment or
overhaul of the treaty is not possible according to art. 13.
2)The body in charge of framing and adopting the amendments was the Continental Congress, a body representing the
government of the States.
3)What was the voting procedure to adopt an amendment? In order to adopt an amendment, a unanimity vote was required so all
thirteen governments should have voted in favour of the proposal of amendment.
4)For the amendment to become a legally binding law, it had to be ratified by each State parliament. A particularly demanding
procedure and hard to be accomplished.

The Philadelphia Convention (1787)

Already the setting up of the convention (ad hoc body representing the delegate of each state, implies a departure from the habit of
delegating the representative role to the Continental Congress. 
Art. 13 does not include the possibility of a convention, the only body in charge of the amendments is the Continental Congress.
However, the latter decided to delegate the convention in order to amend the “Articles of Confederation”.
The idea was not unanime because one the states, when the Convention of Philadelphia was approved, Rhode Island, decided to
boycott the convention because it was beyond the treaty, the constitutional amending power should have stayed in the hands of the
Continental Congress; consequently, there were no delegates from Rhode Island in Philadelphia.
The State of New York sent three delegates but the moment in which it was clear that the function of the Convention was to frame
an entirely new institutional setting, two of them walked out (only Hamilton remained). The Convention pretty soon decided on
the complete overhaul of the “Articles of Confederation”. The text is negotiated and ultimately it is approved in Philadelphia but
the voting requirement was that of unanimity (13 states out of 13 would have had to vote in favour). Instead, Rhode Island and the
State of New York were not represented and not all the delegations favoured the text, only 9 out of 11 were favourable. 
The newly approved text includes art. 7 of the US Constitution, which breaches art. 13 at two points.

Art. 13 is breached by art. 7 at two points:

Art . 7 decides that the new institutional setting (Constitution)  is going to be approved by ad hoc elected bodies called
“conventions” only for the purpose of ratifying the new Constitution; it cuts out State legislatures from the ratification process.
Art. 7 establishes that for the constitution to enter into force, it is sufficient that only 9 states out of 13 vote in favour and ratify the
text (against the previous necessity of a total agreement among the States for the amendment to be approved).

The US Constitution emerges out of blatant breach of the “Articles of Confederation”, it is illegal but when constituent power is
exercised it is legally unconstrained and can breach previous norms.
A prominent American constitutional lawyer, Bruce Ackerman has observed that the republic was born as a secessionist
association of nationalists revolting against the “Articles of Confederation”.
These nine states are nationalist because they want to have more power at the centre and are revolting against the previous
institutional arrangement (the Articles of Confederation).

The ratification process, after the Philadelphia Convention, takes place in all the thirteen states and is marked by the conflict
between federalists (in favour of the new Constitution) and anti-federalists (those who wanted to retain the “Articles of
Confederations” and feared the approval of the Constitution would have led to a too powerful central autonomy that would have
resulted in less self-determination for the states).
In the process of ratification, anti-federalists argued that the new institutional setting centralised too much power which was not
sufficiently constrained. As a matter of fact, the text of the US Constitution of 1789 (after the end of the ratification process) did
not include a Bill of Rights, it was a Constitution regulating the institutional setting.
The Constitution was based on a strong separation of powers: vertical (centre-periphery relation in the territorial distribution of
power) and horizontal (between the three branches of government: executive, legislative and judiciary). The idea of this text was
that, just by enforcing the rigid separation of powers, freedom and fundamental rights would be safeguarded (fundamental rights
which were listed in the constitutions of many of the States). 

So the anti-federalists complained about this text by arguing that the federal government, about to be established and rooted on the
rigid separation of powers, would encroach on individual freedom such as constitutional (proper of the States) rights or the right to
property.
In order to overcome these critiques, during the ratification process, some federalists promised to adopt an amendment, right after
the ratification of the Constitution. Once the Constitution was ratified (first in nine states, according to art. 7, and then it expanded
progressively), already in 1791, the first twelve amendments of the Constitution were adopted and ratified (including the Bill of
Rights).

In this process there was never discussion about conferring sovereignty to the newly-built federation, so all the working of the
Philadelphia Convention was based on the assumption that States would remain sovereign. The original idea was to “form a more
perfect union”, compared to the “Articles of Confederation”. It was not openly acknowledged that sovereignty would gradually
shift to the centre, to the federal level.
In the aftermath of the Civil War, which started with the election of the abolitionist of slavery Abraham Lincoln, when he is
elected some of the Southern States decide to leave the USA and to establish a confederation of Southern States. This secession
resulted in the Civil War, a period in which the consolidation of the federal state was perfected, prior to that it was open to
discussion whether sovereignty remained at state or federal level.
The trajectory towards the federal Big Bang starts with the ratification of the US Constitution and ends after the American Civil
War.
Perfectly coherent with the definition of constituent power is the breaching of law in key-decisions.

c)Constitutional transitions (last kind of internal constitution-making process)

The characteristics of this constitution-making:

We observe constitutional transitions when a change occurs from a form of political rule to a different one, typically from an
authoritarian regime to a democratic regime.
If there is an authoritarian regime, it is easy that there are opponents of the authoritarian regime; the desperate scenario is that the
opponents try to oust the incumbent regime and they lose. But another scenario is that the opponents win and they overthrow the
authoritarian regime (revolution-based model). 
A constitutional transition occurs in the third scenario: the opponents try to oust the declining authoritarian regime but are not
sufficiently powerful to defeat it and therefore they start to negotiate a constitutional transition from autocracy to democracy.
These negotiations give rise to a sequence of constituent acts so the negotiations, between emerging outsiders and declining
incumbents, bring about an exercise of constituent power which gives rise to a sequence of constituent acts. Often, that includes
the adoption of an interim constitution (provisional constitution) which includes the principles and procedures to approve a final
constitution. Legal continuity is retained, the transition takes place without breaking legality, there is no bootstrapping (in
constitutional transition change takes place without breaching the previous regime).

EXAMPLES OF CONSTITUTIONAL TRANSITION

SPAIN (1978)
Spain had a democratic constitution adopted in 1931 characterised by the “left leaning” element (it was democratic but the
ideology was partisan) and the allowance of regional self-determination.
After the Civil War (1936-1939), won by the opposers of the Republic, a dictatorship was founded under Francisco Franco. The
authoritarian regime was grounded on a set of fundamental rules so no new codified constitution was adopted.
At Franco’s death (1975) the authoritarian regime was no longer considered to be sustainable. There is a feeling that a transition is
needed and the political stalemate is offered a way out by two political figures: King Juan Carlos and Adolfo Suarez, both
carrying a good reputation in the eyes of the incumbents of the authoritarian regime. Carlos was chosen by Franco and was very
respected, meanwhile, Suarez had had a decent career inside the regime.
Franco preferred to designate Juan Carlos as future head of state; whereas Suarez had had experience in the previous regime and
was picked personally by Carlos. The idea was to undertake (=intraprendere)  a “ruptura pactada”, a negotiated break with the
previous authoritarian regime.
At the time the opponents of the regime were weak because some of them were in jail or had fled the country so the opposition
parties were rather weak.
A revolution could have not occurred and yet the incumbents thought they were declining, the way out was the ruptura pactada.
Suarez, with the support of Carlos, performed some path-breaking moves:

1)He had the Parliament (composed entirely by supporters of Franco), the incumbent regime to commit suicide so he had them
approve the so-called “Ley para la reforma polìtica”, an amendment of Franco’s fundamental rules (on which the regime was
grounded). The Parliament of the Franco regime decided to amend the fundamental rules by approving the Ley para la Reforma
Politica (also approved by a popular referendum), establishing that a new democracy-based Constitution should have been
adopted. The move established legally that a new constitutional regime would be established. The weight of the change became
clear only in 1977 when the opposition parties were legalised.

2)Santiago Carillo was the leader of the Spanish Communist Party (just legalised) and at a press conference of his party he
surrendered every revolutionary idea in favour of the Monarchy. This affirmation is symbolised by the presence of the Spanish
monarchical flag next to the Communist one. 
At that point, with the opposition being legalised, general elections were held in 1977 and a new Parliament was established;
there, a parliamentary  Committee on Constitutional Matters was founded and entrusted with the task of forming a new
constitutional text. Within the Parliamentary Committee there is a small committee of jurists, called “Ponencia”,  who wrote the
blueprint for the new Constitution. The blueprint was approved by Parliament, a referendum was then held.
There is not an abrupt constitutional transition → EXAMPLE OF SEQUENCE OF CONSTITUENT ACTS
The “Ley para la Reforma Política” can be considered a sort of interim constitution, because it amends the previous regime and
sets out the principles to be followed in the subsequent phase (popular sovereignty, protection of fundamental rights and
democracy)

SOUTH AFRICA
The country was part of the British Colonial Empire (Union of South Africa, 1910), it then gained independence in 1931 (Statute
of Westminster) and until the end of WWII it was ruled by the United Party (set lords of British origins) who applied a “bifurcated
regime”, with two constitutions, one applied to the white population and another applied to the non-white population. The “white”
constitution was similar to the British constitution (based on a strong base of sovereignty of Parliament, elected only by the white
setlords); whereas the “non-white” population was under the rule of a governor-general who implemented an authoritarian
regime. 
There were two main parties: the United Party (English) and the National Party (Dutch origins). 
During the war, the United Party wanted to enter the war and side with Great Britain and the Allies whereas the National Party
was a supporter of the Nazi regime. After the end of the war, the National Party became more prominent and it ruled South Africa
until the 90s.

Under the National Party, two apartheid constitutions are adopted (1961 and 1983): the defining aspect is the disenfranchisement
of the black community (entirely excluded) and the Parliament was tricameral (three chambers: for white population, for the
Indian community and one for the colored population). The three chambers were not at the same level, the white chamber had a
veto power on the decisions of the other two chambers, so predominant over colored and Indians. The Apartheid fell
internationally into disrepute although the phenomenon was supported by Thatcher but then fell into disrepute. So there is a
process, gradually, of unbanning of opposition parties processes (starting from the African National Congress, led by Mandela)
together with a constitutional transition between the National Party and the ANC.

Unlike Spain, the context is violent and on the verge of civil war and there is a first part of this process which is stuck between
violence and unproductivity.
On the one hand, the National Party was willing to make concession (to the ANC) of expanding the Apartheid regime in order to
have a fourth chamber for the black population: they wanted to retain political and economic power. On the other hand, ANC
contrasted this idea because they wanted a genuine democratic constitutional process, grounded on two requisites: general
elections and a government of national unity, to supervise the correctness of the elections.
Negotiations experienced a period of stalemate with a civil war everyday closer, the deadlock is overcome with a political
agreement (codified in the interim Constitution of 1994). 
AGREEMENT → the National Party accepts the two requests by the ANC (government of national unity and general elections);
however, the interim Constitution includes other elements:
 For the text to be approved, it has to reach a ⅔ majority in the Constituent Assembly
 The interim constitution includes 34 principles to follow in drafting the final constitution; the drafting by the Assembly is
bound by these principles
 Certification of the new Constitution by the constitutional court → the constitutional court is in charge of reviewing the
final constitution in the light of the 34 principles.
Elections are held, the ANC wins but with 61% of the votes (not the ⅔ majority) so they did not have the requested votes to write
their own constitution under the 34 principles so the party negotiates the content of the Constitution with other political forces.
A first draft of the Constitution was written but it was sent to the constitutional court which rejected it because the 34 principles
had been breached; a second draft was written and accepted by the Constitutional court.
The constitution entered into force without any referendum.

The constitution-making process of South Africa seems contradictory because of the notion that the constituent power operates
unconstrained, not bound by legal norms. Indeed, the constituent assembly was established by the interim constitution and the text
approved by the assembly was bound by the 34 principles established by the interim constitution. So we have a constituent
assembly operating under legal constraints and these constraints have been enforced by the constitutional court vis-à-vis the first
draft. And that draft was amended, and there was a second ruling certifying that this time the new draft complied with the 34
principles.
Do we have to conclude that sometimes constituent power is subject to legal constraints? No, because constituent power was
exercised in 1994, it is a constituent assembly but if it operates under legal constraint it is not genuine constituent power, it is
constituted power although the name is Constituent Assembly.

The interim constitution binds the activity of the Constituent Assembly but the definition of constituent power is not to be
modified, the change in constitutional regime took place with the agreement of the National Party and the ANC.
Constituent power takes place in 1994 and is the result of agreement between NP and ANC, as a matter of law it is constituted
power. There was a constituent assembly but if it operates under legal constraints, it is constituted power even though the name is
Constituent assembly.
The change in constitutional regime occurred thanks to the agreement between NP and ANC and it was codified in the interim
constitution which establishes the principles of the new constitutional order. The constituent assembly is operating under legal
constraints subject to judicial review of legislation. The difference with Italy is that, structurally, the Italian assembly was not
bound by the interim constitution (which had set up the constituent assembly, the activity of the assembly was unconstrained,
there were no binding principles or constitutional court reviewing the product).

EXTERNAL CONSTITUTION-MAKING PROCESSES

External → the main constituent actors are autochthonous political actors but they operate under the influence of foreign actors.
The exercise of Constituent power is subject to the political influence of foreign actors:
-War-based model → constitutions adopted in countries that have been defeated and are subjected to the ones who have won the
war.
-Constitutional orders emerging from processes of de-colonisation → influenced by the former coloniser power.
-Constitutions adopted under international supervision → international organisations, typically the UN, play a major role in the
constitution-making process.
In all these three types, political communities struggle to re-establish constitutional autochthony; because of the influence of
foreign actors, the constitution is not perceived as a genuine product of political self-determination, it is imposed and foreign.
Therefore, after the enter into force of these texts, political communities struggle to re-establish political ownership on that text.

Autochthony can be established through:

-Reinterpretation (=a new meaning is given to the same text) of the text by genuine autochthonous institutions.
-constitutional amendment, the text inherited from previous experience or adopted under the influence of foreign actors is
amended to re-establish constitutional autochthony.

FEDERAL REPUBLIC OF GERMANY (1949)

Germany was divided into two countries: the Federal Republic (composed by 11 Lander, under the influence of the Allies and was
articulated in sub-national entities) and the Democratic Republic (influenced by the Soviet Union, composed by five Lander).
Allied powers (US, UK and France) remained in control of West Germany until 1955; whereas the Democratic Republic was in
control of East Germany.
The German Basic Law → the starting point towards the adoption was the approval of democratic constitutions in Lander enacted
by legislative assemblies and ratified by the people living in the Lander. =process of constitution making at sub-national level.
The task of writing a new constitutional text was assigned to a Parliamentary Council (ad hoc body designated by the legislative
assemblies of each Land). The Parliamentary Council was not directly elected by “we the people” but by the legislative assemblies
in each Land. 
The Parliamentary Council was subject to the influence and the supervision of the Allied powers, this influence can be visible at
two stages:
1)The Prime Ministers of the 11 Lander were summoned by the Allied powers and they received the Frankfurt Documents, which
included a set of key principles (federalism, democracy and protection of basic rights) to be followed by the Parliamentary
Council. 
2)The activity of the Parliamentary Council was closely monitored by the Allied powers, which intervened in the operation of the
Parliamentary Council to push for certain solutions such as federalism, which was an effective way to prevent a revival of
totalitarianisms. The three military governors (from the US, France and the UK) approved the text of the Parliamentary Council,
only at that point the document was ready to be ratified by the legislative assemblies of at least ⅔ of the Lander (Bavaria was the
only one which opposed the text).

In this constitution-making process, the democratic element is rather weak but not absent because the members of the
Parliamentary Council were designated by legislative assemblies operating under the democratic constitutions of the Lander. The
activity of the Parliamentary Council is influenced by foreign political actors which pre-determine the key principles (federalism,
democracy and basic rights) and exercise a surveillance on the whole process.
INFLUENCE OF FOREIGN FORCES → INSTRUCTION → SURVEILLANCE → FINAL APPROVAL 
The ratification is by sub-national legislative assemblies.

The original plan of the Allies was that the text should have been called “constitution” and been ratified by the people; however,
the Parliamentary Council departed from this suggestion and decided the text had to be named “Basic Law, Grundgesetz” and be
ratified by the Lander because ratification would better be achieved at a sub-national level.

Why a Basic Law and not a Constitution?

The idea of German constitution-makers was that the Basic Law was provisional, the text of West Germany and not for unified
Germany; the idea was that popular constituent power could have been exercised only after the reunification of the two
Germanies. In the meanwhile, a Basic Law was the provisional constitutional text. This idea was included in the Basic Law in art.
146. Art. 146 of the Basic Law establishes that the Basic Law will disappear once the constituent power will be re-exercised in a
unified Germany. After the adoption of the Basic Law,in West Germany the constitutional text was chosen as the symbol of the
political and legal regeneration of the country. The Basic Law established the Constitutional Court which became the centre of an
intense activity of constitutional interpretation of the text. The activity of reinterpretation was an activity of re-appropriation of the
text, so constitutional autochthony was gradually obtained through reinterpretation of the text. It was because of this that a strong
constitutional culture and political legitimacy developed. In West Germany, constitutional patriotism emerged (=sense of
belonging centred on constitutional principles reinterpreted by the German constitutional court; it is a substitute for nationalism).
In 1989 Germany was reunified and art. 146 could have been exercised. Prominent constitutional lawyers recommended that the
fulfilment of the article would be the right choice. A treaty should have been signed with the former German Democratic Republic
but an entirely constitutional text should have been adopted with the use of constituent power. 
However, politicians disagreed (even Helmut Kohl) because in the meantime, the GG had become a highly legitimated text;
therefore, art. 146 was not triggered and five Lander, from the Eastern Germany, joined the Federal Republic via art. 23 of the GG
(setting out the procedure for the East Lander to join the Federal Republic without the need to draft a new constitution). East
Germany was annexed under the GG.

CANADA (1982)
The first constitutional document is the British North America Act (1867), a legislative act adopted in Westminster by the UK
Parliament, the purpose of which was to establish a Canadian confederation between the three provinces at the time (Canada,
Nova Scotia and New Brunswick). 
The confederation was an institutional arrangement to organise a dominion. Canada (eastern part) was a colony, a dominion. Not a
proper confederation because the notion of confederation assumes that the units are sovereign states.
The British North America Act assigned a certain level of self-government to the confederation however the supremacy of the
British was visible.
-Confederation of Canada was subject to the British Crown;
-The citizens were British (Canadian citizenship was not on the table);
-The legislative assembly, established by the British North America Act, was autonomous but British legislation prevailed on key
issues. Foreign policy was run by the British cabinet and the executive power in Canada was appointed by the British cabinet. The
Court of Last Instance was located in London, so the last word on judicial cases was British.
-The source of the legislative and political autonomy of the Canadian confederation was grounded on the British Legislative Act.
The UK Parliament could have easily repealed the instrument of partially autonomous political power, but Canada still remained
not sovereign.
Nonetheless, from 1867 onwards, Canada gradually gained political power and started to assert itself in the international arena as
a distinct unit detached from the British Empire.
For instance, Canada participated autonomously in WWI, it was a distinct member of the League of the Nations, and it achieved
complete legislative independence (1931) with the Statute of Westminster (the decision was approved by the British Parliament)
but remained subject to the Crown and it is still an act of Britain that confers this degree of political autonomy.
However, Canada remains under the British Crown and stays an act of the British Parliament that confers this political self-
determination (conceded, octroyée by Britain).

Was the Statute of Westminster reversible? Yes, it was possible for the British Parliament to amend it but only after the request
and the consent of Canadian authorities.
In 1982, the Constitution Act followed an agreement between the UK Government and the Canadian Prime Minister, Pierre
Trudeau; this act implied the “Patriation” of the Canadian Constitution.
Also the Constitution Act is a British statute, but it implies Patriation because it also includes, among many things such as the
Canadian Bill of Rights, five constitutional amending-clauses establishing the amendment of the Constitution Act is a matter
concerning only the Canadian political institutions without any link to the British Parliament.
In this process, Canada gradually repatriates the Constitution. In this context, constitutional autochthony is achieved through
amendments of the Constitutional text, always approved by the UK Parliament but ultimately Canada achieves complete political
self-determination thanks to those five clauses.

CONSTITUTION-MAKING UNDER INTERNATIONAL SUPERVISION

All the constitutions adopted under guidance and support by international organisations, the exercise of constituent power by
autochthonous forces but the exercise of constituent power is subject to major influence by international organisations. Probably
without the supervision of foreign organisations, a constitution would not be approved.
The influence is visible in the role of mediation and in the fact that key aspects of the constitutional text include international
standards (constitutional norms regarded as best practices).
Timor-leste Sudan and Afghanistan constitution adopted under international supervision of the UN
Iraq → not an example of this kind of constitution because the influence of the US was so prominent there was no genuine
constitutional authorship.
Bosnia-Herzegovina → the constitution is just an annex of the agreement that put an end to the war in Yugoslavia. The
constitution of Bosnia-Herzegovina is an annex of that treaty, its official language is English and no official translation.

CONSTITUTION AMENDING-POWER
The constitution amending power is a manifestation of constituted power, it is exercised under constitutional constraints, not
politically unconstrained as constituent power.
It is often regulated in constitution-amending clauses, constitutional provisions that set the limits for the amendment of the
constitution.
Constitutional designers include these clauses because they are aware of the fact that their choices need to be updated or corrected
in the light of political and social circumstances.
The exercise of the constitutional amending power is visible in three main circumstances:
a)Specific changes → Constitution amending-clauses can be used to approve specific changes in a constitutional text (ex: voting
age for the Italian Senate, specific feature that has been approved).
b)Major changes → (in 2001 the Italian Constitution was changed concerning the territorial organisation of power). In these
circumstances it is important to understand whether constituted power or constituent power is exercised?
Is a major amendment of the constitution a matter of constituent or constituted power?
There are different opinions:
->As long as constitutional amending-clauses are respected, we are in the domain of constituted power. This view is questionable,
there are certain major changes of the Constitution approved in accordance with constitution amending clauses that are the
exercise of derived/secondary constituent power (=constituent power exercised in accordance with constitutional amending-
clauses but the identity is affected). 
Primary constituent power is legally unconstrained (it departs from previous rules). But the fact of being legally unconstrained
does not prevent from following the rules, there are rules and I decide to follow them. 
For example, in Spain constituent power is exercised because we have a new constitutional order and yet the new constitutional
order follows the rules of the previous constitutional regime. In certain circumstances, constituent power can be exercised
following the rules. There are two lines of thought on where to trace the distinction between constituent power and constituted
power, it depends on whether the identity of the constitutional regime is respected.
There could be major changes to the constitution that do not modify the constitutional identity (=constituted power, Italian reform
in 2001, because the identity was not transformed).
The Spanish case is a major constitutional amendment entailing a change in constitutional identity.

TO SUM UP, two lines of thought:

1)The distinction between constituent and constituted power depends on the respect of constitutional amending clauses:
 If they are respected → constituted power
 If they are not → constituent power
2)Constituent power, regardless of whether constitutional amending clauses have been complied with or disregarded, if the
constitutional identity is transformed. By contrast, if we have a major constitutional amendment that leaves unaffected
constitutional identity, we are in the context of constituted power.

c) the 3rd function of constitution-amending clauses → they are used in order to engage in a democratic dialogue with
constitutional adjudicators. There are circumstances in which constitutional courts decide cases but the interpretation offered of
the constitutional text is not met with enthusiasm by political actors, there is disagreement between political institutions and the
constitutional court. Because perhaps the constitutional court has interpreted a const. Provision in a way which is unsustainable for
political actors, who have the opportunity to engage a democratic dialogue with const. adjudicators, they can depart from the
decision of the constitutional court but to do so they need to amend the constitution.
EX: in 2010 the Italian constitution court established that art. 29 does not protect same-sex marriages → plausible but
questionable interpretation. Let’s assume there is a broader majority in parliament willing to establish same-sex marriages and the
court has still the same idea, can the parliament adopt ordinary legislation introducing same-sex marriages? No, it would breach
art. 29. They can either amend art. 29 or insert an ad hoc provision saying that same-sex marriages are possible but they need to
trigger the constitution-amending clause. The legitimate way for political institutions to depart from previous constitutional
rulings is to employ the constitution-amending power.

EX: Dredd Scott v Sandford decision by the US Supreme Court → the US Supreme Court established that the constitutional rights
in the Bill of Rights did not protect Afro-American slaves; secondly, the Congress did not have the power to ban slavery.
This ruling is regarded as one of the steps leading to the Civil War. In the context of the Civil War, the US Constitution was
amended: one of these amendments, the 13th amendment of the USC, abolishes slavery so it is a clear departure or overruling of
the Dredd Scott case.

CONSTITUTION-AMENDING POWER IN THE CONTEXT OF ENTRENCHED/RIGID CONSTITUTIONS

It makes sense to talk about constitution-amending power in this context, where the amendment of the constitution
requires a broader political consensus compared to ordinary legislative making.
One issue when writing constitution-amending power is to decide the appropriate level of rigidity/entrenchment of a
constitution in order to maintain the balance between the stability and the adaptability of a constitution.
This definition of the level of entrenchment is related to the political culture and the political system of a specific
political community. Rigidity is highly embedded.
EX: In the US, the constitutional amending clause requires a ⅔ majority of the congress to start to promote the
amendment.  Is ⅔ a high or low threshold? This is normally regarded as a high threshold, no political party, at the
moment, can achieve such a majority.
We can expect the US constitution is more stable than adaptable (it has existed since 1789), the downside is that the
degree of adaptability is low and if the constitutional amending clause is hard to trigger, changes may take place
informally.
The high threshold does not necessarily prevent the transformation of the constitution, it can lead the transformation on
an informal track.

Ex: South Africa or Hungary → a ⅔ majority is easy to achieve. In 2010 suddenly the political party of Orban won the
election with a ⅔ majority and could write a new constitution complying with the previous constitutional principles.
So assessing whether entrenchment is high or low depends on the political system and on the amending culture.
Ex: Flexible constitution in the UK
On paper, it is very easy to amend. However, historically, amendments of the UK constitution have not been frequent
because constitutional principles are flexible but there is/was a constitutional culture that looked at those principles as
something to retain. Therefore entrenchment was not even necessary because on those principles there was a broad
political consensus.

What if the constitution is too flexible and there is no amending culture?

The risk is that the stability of the norms may be weakened. 
Case of Hungary → in writing the constitution, Orban’s party set out a new institutional framework and a new Bill of
Rights, he also established that on certain topics, decisions should be taken with a 2/3 majority, basically entrenching
the political preference of his party.
When stability is low, the risk of undermining fundamental norms is higher, more exposed to the vagaries of politics.

Constitutional amending clauses

There are certain constitutions (Canada) where we find multi-tracks constitutional amending clauses (= constitutional
amending clauses where the level of entrenchment varies depending on the subject matter, there are areas of the
constitutional text more rigid than others and others that lend themselves to constitutional amendments more easily).
After the constitution of 1982 (Canada), there are five different levels of entrenchment or five different procedures to
amend the constitution.
Another distinction visible in certain constitutions (Spain) is the one between total or partial amendment: clauses
enabling total and others enabling the partial constitutional amendments.
What does this mean? This distinction in certain constitutional systems is not even codified (Italy, Germany) the
procedure is just one and employed to approve major constitutional amendments or specific ones. 
By contrast, in the case of Spain, Austria and Switzerland there are different procedures, the assumption being that a
total constitutional amendment will change the constitutional identity so in principle total constitutional amendments are
manifestations of derived constituent power.
 CONSTITUTIONAL AMENDING CLAUSES, HOW CAN CONSTITUTIONS BE AMENDED?

ITALY
Art. 138
Two houses of the Parliament have to vote on the same text twice: the first vote with a simple majority; the second vote, after at least
three months, with absolute majority. Then there are two procedures.
1)Two votes from the Houses of Parl. - three months - second vote: threshold of ⅔ of the votes - no referendum - amendment
2)Two votes from the Houses of Parl. - three months - second vote: no ⅔ majority - no nec. of a referendum (it can be asked by: 5
regional councils, 500.000 signatures by electors and ⅕ of one house of Parl.) - then referendum - const. amend. with a simple
majority
Backup procedure:
No broad agreement - absolute majority. of Parl. - pop referendum (compensating for the lack of political consensus in Parliament)
Either a broad parliamentary agreement or a narrower parliamentary agreement (with absolute majority) and a popular referendum.

Why is the constitutional amending process this way? 

If you want to modify the constitutional commitments achieved in 1947, you have to reach a certain degree of political consensus
which is comparable to the level reached back in 1947.

Art. 139 → the outcome of the institutional referendum (the Republican form of government) cannot be amended (Eternity Clause →
meant to last forever but the constituent power is not bound by this because it is dormant. The E.C. binds only constituted power).

GERMANY
To amend the GG → amendments explicit - ⅔ majority. in the Bundestag (represents the citizens) and ⅔ majority in the Bundesrat
(represent the gov. of the 16 Lander). The message of this procedure is that what is required is a consensus of political parties and a
broad consensus among the executives of the Lander. Two sources of power: we the people and the Lander, so it is not sufficient to
gather a ⅔ majority. A broad consensus among the executives of the Lander is also needed. Eternity clause → the division of the
federation into Lander (at least two Lander are needed; changes in the boundaries and merges of the Lander are possible but some
articulation is required) and it is impossible to amend the part of the constitution requiring the participation of the Lander in the
legislative process (via the Bundesrat).Other principles protected from the possibility of amendment: art. 1 (human dignity) and art.
20 (federal, democratic and social state nature).What is the source of the Eternity clause? The Frankfurt document, the blueprint of
those principles that cannot be amended (“super-constitution” in Schmitt’s words).

FRANCE
Art. 89
Constitutional amendments shall be proposed by either the president (under the recommendation of the prime minister) or the
members of the Parliament (bicameral, National assembly, representing people + Senate, representing local authorities).
Two procedures available:
1)Approval by the two houses (no entrenchment, simple majority) - popular referendum
32)The President of the Rep. can decide to avoid the first procedure and to convene the Congress with a joint session of the two
houses of parl. (National Assembly + Senate). Members meet in Versaille and then deliberate on the proposed amendment. In order
for it to pass, a ⅗ majority should be cleared. (No referendum but broader political consensus). In case of an invasion or a risk of
secession, the constitution cannot be amended. Eternity clause: the republican form of government shall not be the object of any
amendment.

UNITED STATES
4 procedures to amend the constitution, all four procedures are based on two moments (one in Washington DC and the other one in
the capitals of all fifty states):
1. Congress (House of Repr. + Senate) vote with a ⅔ majority. On the same text of an amendment - in the states, ratification
of ¾ of states legislators
2. ⅔ majority. in Congress - ratification by ¾ of ad hoc conventions set up in each state
3. In Washington DC, a convention (no longer the Congress) is called by a proposal by ⅔ of states legislators - Conv.
established - amendment approved - ratification by ¾ of states conventions
4. In Washington DC, a convention (no longer the Congress) is called by a proposal by ⅔ of states legislators - Conv.
established - amendment approved - ratification by ¾ of states legislators 
Limits to constitutional amendments:
 no possibility until 1808 to amend the part of the constitution that allowed to trade slaves;
 No state shall be deprived of its equal suffrage in the Senate (two senators per state) and unless they consent to this, this is
something untouchable even by triggering art. 5.
 SOUTH AFRICA
The South African has several layers of entrenchment, visible in art. 74.
1)Sect. 1 lists the fundamental values → it can be amended (South Africa doesn’t include an eternity clause) but with high thresholds
of consensus: 75% of the members of the National Assembly + the approval of 6/9 provinces represented in the National Council of
Provinces (9 provinces that cast their vote as a unit).
2)Chapter 2 (to amend the Bill of Rights) → ⅔ of national assembly and 6/9 provinces 
3)Any other provision of the constitution → ⅔ of national assembly and the 6/9 provinces of NCP but only if the proposed amendment affects
the prerogatives of the provinces.

SPAIN
(Example of total and partial amendment)
Sect. 167 (procedure for partial amendments, lowest level of entrenchment) → ⅗ in each house of parl. + possibility of a referendum
if requested by 1/10 of the members of one house
Backup procedure: if the ⅗ majority. in Senate is not reached, it is sufficient ⅔ of the members of the Congress - absolute maj. in
Senate + possibility of referendum Art. 168 (procedure for total amendments): ⅔ maj. in both houses - total amendment approved -
dissolution of both houses and new elections - ⅔ majority. of the new houses - popular referendum (necessary).
Art. 169 (limitation in the timing of constitutional amendments) → in case of emergency, alarm or a siege the constitution cannot be
amended

What if the constitutional amending power is exercised in breach of eternity clauses?

Constitution amending power is a manifestation of constituted power (subject to legal constraints, the Eternity Clauses).
What if these procedural constraints are breached? Do we have legal remedies?
Constitution-amending power is exercised in breach of either the substantive or procedural limits established by the constitution.
The consequences depend on the different constitutional systems:
France → the French constitutional court reframes from reviewing const. amendments. 
Ex: in 1962 De Gaulle amended the constitution shifting from indirect to direct popular election of the President of the Republic. 
This constitutional amendment was approved by means of art. 11 (not art. 89). Many people thought it was a breach of art. 89 and the case was
brought before the constitutional court (which does not have the power to review constitutional amendments). 
In France there's no judiciary and legislative guarantee for constitutional amendments that are considered to be unconstitutional.
Turkey → the constitutional court has the power to review constitutional amendments only on procedural grounds. In Turkey there is the
attribution of power to review constitutional amendments but only to control if the procedure has been respected.
However, in 2008 a constitutional amendment was approved lifting the ban on headscarves in Turkish universities. The constitutional
amendment was brought to the constitutional court. The constitutional court had only the power to review the procedure leading to the adoption
of the amendment but not its content.
The challenge invoked the violation of the principle of secular republic (substantive principle) and yet the constitutional court decided to review
on substantive grounds the amendment and it was quashed.
Germany and Italy → we have Eternity clauses but nowhere in the constitutions there is a provision authorising the constitutional court to review
constitutional amendments. In two prominent decisions, both the German constitutional court (1951) and the Italian constitutional court (1988)
ruled that constitutional courts have the power to review constitutional amendments, both on substantive and procedural grounds.
India → the Indian constitution does not include any eternity clause. However, in 1973 (Kesavananda Bharati v State of Kerala) the Indian
Supreme Court decided that there are limits to constitution-amending power in the Basic structure of the constitution (limits being federalism
and protection of constitutional rights).

No eternity clause → eternity clause judge-made (“Basic structure”)

The Indian Supreme Court was split and that ruling was politically controversial because it imposed a limit on constitution-amending power so
the Indian parliament approved a constitutional amendment specifying that the Supreme Court did not have power to review const amendments.
That constitutional amendment was challenged and the Indian Supreme Court found that the const amendment breached the Basic structure of
the constitution (which includes the power of the Supreme Court to review constitutional amendments).
1)Judge-made Basic structure + limits to the constitution-amending power
2)The constitution-amending power reacts and adopts a constitutional amendment trying to immunise itself from the review of the Supreme
Court.
3)This amendment is challenged and the Supreme Court finds it unconstitutional because the power to review constitutional amendment is
included in the Basic structure.

Informal constitutional changes

Certain changes in constitutional norms take place without modifying the formal constitution, the text remains intact and yet
norms are modified, the understanding of the text is modified, or substantive/informal norms are introduced.
What are the ways for informal constitutional changes?
1)A very important way to change the meaning of constitutional text is through constitutional conventions (=a political practice
developed on the basis of a constitutional norm. So, the constitutional text remains the same but political practice is transformed).
This transformation is widely shared.
EX: Shift from constitutional to parliamentary monarchy through a change of constitutional conventions → the change regards the
relationship between the cabinet (originally a body established to assist the crown in the exercise of executive power, the members
of the cabinet were entrusted with the power by the monarch). Under the constitutional monarchy there was no relationship
between the cabinet and the Parliament, representing the citizens.
There was a clear separation between the executive (Crown + Cabinet) and the legislative power (Parliament). 
However, as the Parliament increased its influence and the social groups represented in Parliament grew in their importance, a
different political practice emerged → in appointing the members of the cabinet the King or the Queen would consider their
support in parliament so the King would appoint, as members of the cabinet, only individuals with a support of a majority in
parliament). It was the birth of the CONFIDENCE RULE (the cabinet to operate in a parliamentary form of government requires
the support or the toleration by a parliamentary majority.
At that point the relationship between executive and legislative power was not clearly separated because the cabinet required the
support of a Parliamentary majority. The change required no modifications of the constitutional text, it was brought about by the
transformation of political practices, agreed on by everyone.

EX: In Italy there used to be a political practice on the appointment of the members of the constitutional court by the Parliament, a
tacit agreement on the basis of which the Parliament appointed five members of the Italian Constitutional Court.
In the first Republic there was an agreement between political forces that established the expression of two of the Christian
democrats, one of the Communists, one of the Socialists and one rotating among the smaller parties.
After the end of the 1st Republic that practice was modified, nowadays it has changed again, there used to be an agreement
establishing equal representation between the main political majority and the opposition.
But the original practice was modified because it could be respected since it was not a rule.

2)A second way to change informally the constitution is through judicial rulings, through decisions by Supreme or constitutional
courts modifying the meanings of constitutional norms or even bringing about key constitutional changes (ex: Marbury v
Madison, nowhere in the US Constitution was written the judges could review legislation and yet the Supreme Court inserted this
principle). So we have Constitutional courts that integrate the meaning of the constitution in a remarkable way.
EX: The decision adopted by the Conseil Constitutionnel in 1971 on the Bloc de constitutionnalité: the constitution of 1958
(wanted by De Gaulle) transferred a lot power from the Parliament to the executive (visible in art 34 of the French constitution
which lists the policy fields where the Parliament is authorised to legislate, so the French Parliament does not have a general
legislative power, only in the fields of art. 34).
The 1958 constitution also established a conseil constitutionnel whose main task was to enforce the limits of art. 34, to protect the
executive from the expansion of legislative power. Outside this list, the decision-making power is entrusted with the cabinet
adopting regulations and in order to preserve the prerogatives of the executive (=cabinet), the conseil constitutionnel is entrusted
with the task to review legislative enactments and secure the distribution of power defined in art. 34 is respected.
In 1971 the conseil constitutionnel decided the expansion of its jurisdiction, it was its task to secure the respect of the bloc de
constitutionalité, a judge-made concept (not in the constitution), which includes principles we can find in the preamble of the
1958 constitution and in the constitutional documents such as the Declaration of the Rights of Man and of the Citizen (1789).
In 1971 the conseil constitutionnel, from being a body that had just to secure art. 34, now was also in charge of the task to review
legislative deliberations in the light of fundamental principles referred to constitutional rights. So the text of art. 34 or the text of
the norms concerning the conseil constitutionnel were not touched and yet a key-constitutional change took place informally.

3)the 3rd way to informally change the constitution → informal changes in constitutional moments → theory developed in the
context of US constitutionalism and presupposes a constitution rather difficult to formally amend (if a constitution is too rigid, the
change may take place informally, via other paths alternative to the formal constitution-amending clause). The procedure spelled
out by art. 5 of the US Constitution is rather demanding.
This theory put forward by Ackerman is not shared by everyone, it is disputed but it offers an accurate way to show how that
constitutional system has changed.
Ackerman states that there is a constitution-amending clause in the US but there are other ways to change the US Constitution: it
can be changed in a federal mode (formal change following art. 5) or through the national mode (informal).
-Federal mode → strongly attached to the origins of US Constitutional history where the political centre of gravity were the states,
the federated units. As a matter of fact, to formally amend the constitution, a proposal made by the Congress or the Federal
Convention requires ¾ of the States or the Conventions ratifying (broad consensus at state level).
Ackerman thought this practice reflected the nature of the US political community, a unity of people; citizenship at the beginning
was strongly related to the States and federal citizenship was only secondary.
-National mode :In particular constitutional moments, we observe a high degree of political mobilisation centred in a political
party movement such as the New Deal and the civil rights revolution in the 60’s, both of them found their representation in the
Democratic Party. In these times the political party movement succeeds in gaining control of the three branches of government:
the Presidency, the Congress and the Federal Judiciary. 
If this sustained control is protracted, there is the possibility to structurally modify the meanings of existing constitutional norms
through super precedents (decisions by the Supreme Court that change the understanding of constitutional norms) and landmark
legislation (key legislative acts).

SUPER PRECEDENTS + LANDMARK LEGISLATION = INFORMAL CHANGE

EX: In the late XIX century the Supreme Court ruled that segregation was compatible with the equal-protection clause. The ruling
in 1954 of the US Supreme Court in Brown v Board of Education, overruled that precedent. The case is an example of super
precedent that has changed in a rather radical way the meaning of constitutional norms. Brown v Board of Education put an end to
segregation by establishing it was unconstitutional and after that ruling, a set of landmark legislation was adopted under Lyndon
Johnson to implement that principle. This is how Ackerman defines this kind of change taking place in constitutional moments:
the national mode requires constitutional reformers to maintain the electoral momentum in the face of the dissent by conservative
branches in the system of separation of powers.