The control of constitutional amendments and the checks and balances system: a proposal in the light of constitutional engineering in which the constitutional magistracy is legitimized by not having the last word

Abstract:

Genuine constitutionalism lies upon a basic premise: «political power is limited by the law». Nonetheless, there are a couple of institutions and procedures that operate at the margin of the Constitution, and somehow, are beyond its control: On the one hand, the «Constituted Constituent Power» and ‘its’ correlative process of constitutional amendment; and on the other -and within those jurisdictions in which the latter is subject to judicial review- an equally reckoning and emerging power: Constitutional Courts empowered to review the unconstitutionality of constitutional amendments. This essay contends some fundamental notions that may enable the implementation of a distinctive procedure to govern constitutional amendments by fostering the necessary debate around their content and design, from the vantage point of the so-called «Constitutional Engineering», that may ultimately pave the way for consistent judicial review -accorded to constitutional courts- and for more effective political and social controls -accorded to the legislature and the People-, and by introducing at the same time, a series of checks and balances as expected in any constitutional democracy.

Keywords:
constituted constituent power; constitutional courts; constitutional engineering; checks and balances; judicial veto