ABSTRACT

Constitutional theory differentiates between the total replacement of a constitution by new constitutional structures, and the amendment of a constitution. This chapter explores the conceptual elements of and the empirical tension between constitution-making and constitution-amending authority. The concept of identity is used to describe the difference between the two powers, and the concept of legitimacy may help to evaluate whether amendments that change the constitutional identity weaken or strengthen constitutionalism. The chapter analyses the concept of a normative constitution which complies with the requirements of constitutionalism. Changing the constitutional identity by applying the constitutional amendment rule may result in weakening or strengthening constitutionalism. The chapter presents a case study on applying the standard in the Hungarian case, which illustrates that identity change is especially easy if the constitutional amendment process is relatively flexible and the Constitutional Court is not authorized to review a constitutional amendment that has been made in accordance with the formal requirements of the constitution.