An Untainted Constitution: An Approach to Constitutional Dismemberment

Abstract

It is not a defeat of constitutionalism that constitutions can and should be amended and even abolished. This is a natural process. The purpose of a constitution should not prevent the reading, criticism, analysis and changes of future generations; however, it is crucial to be guided by the institutional framework for change—meaning its legality and legitimacy—as a standard for its acceptance in a democratic, rule-of-law state. The purpose of this paper is to analyze the figure of constitutional dismemberment, a phenomenon that describes an excessive constitutional change, one capable of adopting extreme transformations with respect to the original project of the constitution, either in its structure, rights, and identity. To this end, starting from a general scope, the idea of the constitution as an object and an obsession and its relationship with the possibility of carrying out a constitutional reform or suppression will be introduced. Subsequently, the concept of constitutional dismemberment proposed by Richard Albert will be identified, specifically to show that the character of the constitution as an open code does not imply admitting any constitutional change, which should motivate the unconstitutionality of a constitutional reform; also, the need to accompany the jurisdictional guarantee of the constitution with a scheme of integral evaluation of constitutional change and a necessary topic for constitutional design will be briefly proposed. In another section, some general cases that could generate the unconstitutionality of a constitutional change by dismemberment will be determined. This paper will conclude on the need to build a progressive legitimacy of constitutional change from the foundations of the constitution, deliberation and the rule of law.