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Old and Protected? On the "Supra-Constitutional" Clause in the Constitution of Norway

Published online by Cambridge University Press:  23 June 2017

Eivind Smith
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Extract

The world's second-oldest written constitution (1814) still existing presumably also contains the world's oldest substantive “supra-constitutional” or “eternity” clause. According to its text, the “spirit “ and “principles” of the Constitution cannot be amended.

However, it is less than clear that the clause is meant to exclude not only “amendments” but also the adoption of a brand new constitution. Moreover, the meaning of the clause two centuries later cannot be determined without regard to subsequent changes to other parts of the Constitution. The examples discussed include the constitutional monarchy, affected not only by the radical shift in our perception of the role of a hereditary king but first and foremost by formal amendments. In this way, “principles” that may initially have been protected may no longer enjoy a similar status.

Who has the last word as to the substantive limits to amendments? The widely held view in Norway is that the judiciary should stand back. While judicial review of legislation leaves the last word about what norms to apply in the future to the constitution-amending power, judicial review of constitutional amendments would leave the last word about the future meaning of the Constitution itself to judges. Another argument refers to our inherent right as human beings to resist oppression. This argument deserves attention even if it is not substantiated in the text of the Constitution.

Are the “spirit” and “principles” of the Constitution of Norway well protected? If the clause is understood as a contribution to the smoothness of constitutional development over time and thereby to the relative success of the Norwegian Constitution, the assessment is likely to be rather positive.

Type
Unconstitutional Constitutional Amendments
Information
Israel Law Review , Volume 44 , Issue 3 , 2011 , pp. 369 - 388
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 2011

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References

1 On the development of the Norwegian system of judicial review of legislation, see, for example, Smith, Eivind, On the Formation and Development of Constitutional Jurisdiction in a Democratic Society, in Festskrift Til Fredrik Sterzel 289–305 (1999)Google Scholar; Smith, Eivind, Høyesterett og Folkestyre [The Supreme Court and Democracy] (1993)Google Scholar.

2 On the terminology on this point, see further infra II.

3 Pernice, Ingolf, Bestandssicherung der Verfassungen: Verfassungsrechtlige Mechanismen zur Wahrung der Verfassungsordnung, in L'espace Constitutionnel Europeen 230 (Bieber, Roland & Widmer, Pierre eds., 1995)Google Scholar. See also Möller, Hauke, Die Verfassungsgebende Gewalt des Volkes und die Schranken der Verfassungsrevision. Eine Untersuchung zu Art. 79 Abs. 3 GG und zur Verfassungsgegebenden Gewalt nach dem Grundgesetz 118–19 (2004)Google Scholar; Rigaux, Marie-Fran¸oise, La Théorie des Limites Matérielles à L'exercice de la Fonction Constituante 48 (1985)Google Scholar.

4 Häberle, Peter, Verfassungsrechtlige Ewigheitsklausulen als verfassungsstaatlige Identitätsgarantien, in Völkerrecht im Dienste des Menschen: Festschrift für Hans Haug 84 (Hangartner, Yvo & Trechsel, Stefan eds., 1986)Google Scholar.

5 “The classic example … that is always quoted again and again.”

6 The English translation is taken from the website of the Norwegian Parliament, available at http://www.stortinget.no/en/In-English/About-the-Storting/The-Constitution/The-Constitution.

7 Literally “the Great [Stor-] Thing.” The word “Thing” (or Assembly) refers back to the Norse tradition.

8 In Norway, the Constitution still (2012) does not provide for the dissolution of Parliament.

9 This presupposes a distinction between “modern” constitutions and older (including medieval) pacts between the prince and the members of nobility (or other bodies composing the états généraux). In such texts, we actually find a number of “eternity clauses.” The corresponding idea is discussed, inter alia, in Rousseau, Jean Jacques, Du Contrat Social (1762)Google Scholar. If the basic conditions for the prince's right to govern as laid down in a similar pact are violated, the governed enjoy a right to no longer submit to his orders. Paving the way between the old and the new regime, article 2 of the 1789 French Declaration of the Rights of Man and of the Citizen lists the right to resist oppression among the human rights explicitly characterized as “naturels et imprescriptibles.“

10 The secession was formalized by the Treaty of Kiel of January 14, 1814 between the King of Sweden, who had joined the allies against Napoleon, and the King of Denmark-Norway, who had been forced to choose Napoleon's side due to previous events.

11 According to article 132 of the 1861 Constitution of Ecuador, the bases contained in articles 12 (on religion), 13 (on the popular, representative, elected, and responsible character of the government), and 14 (on the separation of powers) could not be altered. See Constitución de la República del Ecuador [Constitution], Apr. 10, 1861 (Ecuador), available at http://www.constitutionnet.org/files/1861.pdf.

12 According to article 107 of the 1864 Greek Constitution, the Constitution could not be completely revised, whereas certain provisions that were not of a “fundamental” character were open to amendment at least ten years after the initial enactment. In article 192 of the 1927 Greek Constitution, the basic criterion for amendments was the same. Information provided by Professor Kostas Mavrias, Athens (April 2011).

13 Among modern contributions to the study of substantive limits on constitutional amendment, suffice it here to mention Rigaux, supra note 3.

14 According to article 288 of the 1976 Constitution of the Portuguese Republic (as amended), laws revising the Constitution must respect a list of 14 principles and values, including national independence, rights and freedoms, mixed economy, local self-government, the independence of the courts, and judicial review. Constituiçâo da República Portuguesa [Constitution], Apr. 2, 1976, as amended by Constitutional Law 1/2001, Dec. 12, 2001 (Port.), available at http://app.parlamento.pt/LivrosOnLine/Vozes_Constituinte/home.html.

15 On India, see, for example, Krishnaswamy, Sudhir, Democracy and Constitutionalism in India: A Study of The Basic Structure Doctrine (2009)Google Scholar.

16 See also Smith, Eivind, Constitutional Cultures: The Constitution Between Politics and Law, in The Constitution as an Instrument of Change 19-51 (Smith, Eivind ed., 2003)Google Scholar.

17 See also Krishnaswamy, supra note 15.

18 See, for example, article 148 of the Constitution of Lithuania, which requires a referendum (sometimes even with a qualified majority) for the amendment of certain provisions but not for the remainder of the text. Lietuvos Respublikos Konstitucua [Constitution], Nov. 2, 1992 (Lith.), available at http://www3.lrs.lt/home/Konstitucija/Constitution.htm. See also Taube, Caroline, Constitutionalism in Estonia, Latvia and Lithuania (2001)Google Scholar.

19 See Eckhoff, Torstein & Sundby, Nils Kristian, Om selvrefererende lover [On Self-Referring Norms], Tidsskrift for Rettsvitenskap 34 (1974)Google Scholar (referring to contributions by Alf Ross, Joseph Raz, and others). See also Klein, Claude, Théorie et Pratique du Pouvoir Constituant (1996) ch. VIGoogle Scholar (which, for obvious linguistic reasons, contains no references to the article in Norwegian by Eckhoff et Sundby).

20 The possibility has been suggested in the Norwegian literature on constitutional law. See 2 Bredo Morgenstierne, Lærebok I den Norske statsforfatningsret [Textbook on The Constitutional Law of Norway] 107 (3d ed. 1927)Google Scholar. However, it was rejected by the leading Norwegian constitutional law scholar of the 20th century, who referred to the “eternity clause” itself as one of the “principles” to which the provision refers. See 2 Castberg, Frede, Norges Statsforfatning [The Constitution of Norway] 18 (3d ed. 1964)Google Scholar. In the author's view, this argument is hardly convincing.

21 Va. Const. art. XII § 2.

22 Stang, Friederich, Systematisk Fremstilling af Kongeriget Norges Constitutionelle Eller Grundlovsbestemte Ret [A Systematic Presentation of The Constitutional Law of the Kingdom of Norway] 64–71 (1833)Google Scholar.

23 Id. at 622-23.

24 For further discussion, see Smith, Eivind, Konstitusjonelt Demokrati [Constitutional Democracy] 104 et seq. (2009)Google Scholar.

25 For further discussion, see Smith, Eivind, Political Hero, Legal Dwarf? The Impact of the Warren Court in Europe, in Earl Warren and the Warren Court: the Legacy in American and Foreign Law 309–32 (Scheiber, Harry N. ed., 2007)Google Scholar.

26 For an attempted comparison, see Bjørn Erik Rasch, Rigidity in Constitutional Amendment Procedures, in The Constitution as an Instrument of Change, supra note 16, at 111-25.

27 Suffice it here to mention Scalia, Antonin & Gutmann, Amy, A Matter of Interpretation: Federal Courts and The Law: An Essay (1997)Google Scholar.

28 This was actually argued by the leading Norwegian constitutional law scholar of the second half of the 19th century. See 3 Aschehoug, Torkel H., Norges Nuværende Statsforfatning [The Present Constitution of Norway] 538 (1885)Google Scholar. This position was actually shared by the bulk of the legal community of his time.

29 Following the November 1814 amendment of the Constitution and until 1905, the King of Norway was also the King of Sweden, but was required to govern according to two entirely independent and widely different constitutional set-ups.

30 The main issue in the 1883-1884 proceedings was a constitutional amendment giving the ministers access to the sessions of the Parliament, commonly regarded as a precondition—albeit not a sufficient one—for the introduction of a system of cabinet responsibility to Parliament commonly referred to as parliamentary government.

31 According to the current text, the role of the King is limited to announcing a constitutional amendment “in print as an applicable provision of the Constitution of the Kingdom of Norway” (see supra I).

32 See Morgensterne, Bredo, Sanktionsretten og Storthingets Beslutningsmyn-Dighed Efter Grundlovsbeslutningerne af 1913 (1915)Google Scholar.

33 Incidentally, a recent political compromise is likely to entail a substantive if not complete dismantling of the “state church” system by constitutional amendment in 2012. See Smith, Eivind, And They Lived Happily Together? On the Relationship Between Confessionalism, Establishment and Secularism under the Constitution of Norway, in Law and Religion in the 21 st Century— Nordic Perspectives 123–43 (Christoffersen, Lisbet et al. eds., 2010)Google Scholar.

34 On one occasion, a question of this kind was rejected by the Appeals Board of the Supreme Court on formal grounds regarding absence of standing (see Rt. 1991, 173).

35 For further discussion, see Smith, supra note 24.

36 For reasons already mentioned, this argument is of rather doubtful value in countries with exceedingly rigid constitutions, such as the United States of America.

37 For further discussion, see Smith, Eivind, The Legitimacy of Judicial Review of Legislation: A Comparative Approach, in Constitutional Justice Under Old Constitutions 363–402 (Smith, Eivind ed., 1995)Google Scholar.

38 For further discussion, see Smith, supra note 16, at 21-51.