Constitutions are the fundamental norms of a country and can be amended in response to political and economic changes. The theories of unlimited and limited amendment explain the necessity and limits of constitutional amendment.
In general, a constitution is a fundamental norm that sets forth the basic principles of a country’s governing organization and governing action, and is the most basic agreement of the members of a state and the highest law that constitutes the state. As such, constitutions are important for legal stability. However, constitutions are often amended to maintain their normative power in response to changing political and economic conditions or to organize the constitution in an orderly and focused manner.
Constitutional amendment is the act of making changes to the form or content of a constitution by consciously modifying, deleting, or adding specific provisions in accordance with the amendment process stipulated in the constitution. It differs from the repeal of a constitution, which not only extinguishes the existing constitution but also removes the constitution-making power that underlies it.
Scholars differ on the extent to which a constitution can be amended, which is generally divided into the unlimited amendment theory and the limited amendment theory. The unlimited amendment theory holds that any provision or matter can be amended by going through the amendment process stipulated in the constitution. The unlimited amendment theory argues that the only way to bridge the gap between constitutional norms and constitutional reality is to allow unlimited amendments to the constitution. It also denies the distinction between constitution-making power and constitutional amendment power, arguing that the supreme legal power of the constitution is the power to amend the constitution. However, the unlimited amendment theory is criticized for absolutizing the formal legitimacy of constitutional amendments while ignoring the difference in the substantive normative power of legal norms.
The limited amendment theory holds that certain provisions or matters cannot be amended even if the constitutional amendment process is followed. The limited amendment theory distinguishes between the power to enact the constitution and the power to amend the constitution, arguing that the power to amend the constitution cannot change the location of the power to enact the constitution or change the basic value order of the constitution, which is the national consensus at the time of the enactment of the constitution. In addition, the constitution as a fundamental decision made by the constitution makers is not subject to amendment, and constitutional amendments that violate the principles of natural law that exist above the constitution are not allowed. For example, the principle of national sovereignty and the guarantee of human dignity and value in the Korean Constitution cannot be amended through the constitutional amendment process.
The need for constitutional amendments is also made clearer by historical events. In many countries, constitutional amendments often take place during political upheavals or revolutionary situations. For example, the French Constitution of 1791, written after the French Revolution, reflected the social and political changes of the time. Germany also wrote a new constitution after World War II to establish a democratic basic order. These historical examples show that constitutions need to be reorganized according to social changes.
In addition, constitutional amendments are an essential part of a country’s development. Initially, the focus is on establishing a basic legal structure, but over time, more specific and detailed legal needs arise. For example, with the advent of the information society, the need for constitutional provisions related to privacy has arisen, and this has been reflected in new provisions in national constitutions.
Public participation and consensus are important factors in the constitutional amendment process. The amendment process itself should be democratic and reflect the will of the people, such as by requiring a referendum or an overwhelming majority vote in parliament. This ensures the legitimacy and acceptability of the constitution. A constitution is more than just a set of laws; it contains fundamental values and principles that guide people’s lives.
As such, constitutional amendments are more than just legal amendments; they are an important process that determines the future of a country. Therefore, constitutional amendment discussions should be conducted through careful and in-depth public debate to ensure that the will of the people is faithfully reflected in the process. This is essential to ensure that the constitution fulfills its role as the fundamental norm of the country.
In conclusion, constitutional amendment is an essential and important process that reflects the development and change of a country. As the constitution is the most important legal document that defines the basic rights of the people and the basic structure of the state, the process of amending it must be carried out very carefully. Constitutional amendments maintain and develop the legal and social order of a country, which has a positive impact on people’s lives. Therefore, the discussion of constitutional amendments should be conducted through a transparent and democratic process with public participation and consensus.
