Referenda and differential entrenchment: a framework bill

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Ashcroft Burnham
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Referenda and differential entrenchment: a framework bill

Post by Ashcroft Burnham »

At to-day's Representative Assembly meeting, the discussion of referenda for constitutional amendments was again tabled. I suggested the idea of drafting a framework bill to enable differential entrenchment of parts of the constitution to be achieved easily, and so propose the below bill. I will not submit it on a notecard yet, since it may be better for people to have time to comment on it before I submit the final version.

The idea of the framework bill is to specify (1) the different levels of entrenchment, (2) how different parts of the constitution are marked for those different levels, and (3) what procedure is required to change entrenchment levels. The only part of the constitution that this Bill would make entrenched is the entrenchment provision itself. It would then be a matter for further debate (and furhter constiutional amendment bills, that would not themselves need referenda to pass) what other parts of the constitution receive the additional level of entrenchment. The idea is, however, that once one has decided in principle which parts of the constitution should be additionally entrenched, it will be trivially easy to achieve it in practice, simply by surrounding the text in question with the ♦ symbol. For example:

[quote="The Constitution":3v4jekhb]1. This is a non-entrenched part of the constitution.


2. This is an entrenched part of the constitution.

[/quote:3v4jekhb]

It seems that, although I had previously proposed three or four different levels of entrenchment, the idea of only two levels is more popular amongst members of the Representative Assembly, so I have drafted the Bill to give only two such levels.

Without yet getting into the discussion of what parts (other than the entrenchment provision itself) should be protected by entrenchment, any comments on this framework would be appreciated.

[b:3v4jekhb][u:3v4jekhb]The Constitutional Amendment (Referenda and Differential Entrenchment) Framework Bill[/b:3v4jekhb][/u:3v4jekhb]

[i:3v4jekhb]A Bill to provide a framework for entrenching selected parts of the constitution by making a national referendum a prerequisite to amending those selected parts[/i:3v4jekhb]

1. The following shall be removed from Article I, Section 6 of the constitution:

"Constitutional amendments require a 2/3 vote".

2. The following text shall be removed from Article I, Section 7 of the constitution:

"The RA can amend the constitution with a 2/3 vote".

3. The following text shall be inserted at the end of Article I, Section 6 of the constitution:

***


Subject to any power of veto exercisable by any branch of government expressly provided for in the text of this constitution, the Representative Assembly may amend any part of this constiution, but only: -

(a) in the case of any text in the constitution situated between two instances of the following symbol: "♦", after a vote in favour of that amendment by: (i) not less than two-thirds of the members of the Representative Assembly; and (ii) not less than half of those voting in a national popular referendum; or

(b) in the case of any other text in the constitution, after a vote in favour of that amendment by not less than two-thirds of the members of the Representative Assembly.

For the purposes of paragraph (a) above, an amendment to remove any instance of the "♦" symbol from any part of the constitution, or to insert any instance of the "♦" symbol in any place so as to cause text that was, before the insertion of that symbol, between two "♦" symbols, no longer to be between two such symbols, shall be deemed to be an amendment of text situated between two instances thereof, and may not be passed except by means of the procedure set out in paragraph (a) above.

For the purposes determining whether any text of the constitution is situated between two instances of the "♦" symbol for the purposes of paragraph (a) above, any instance of the "♦" symbol in quote marks shall be disregarded.

***

Ashcroft Burnham

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Claude Desmoulins
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Post by Claude Desmoulins »

I appreciate your efforts to get this drafted, but a question has come to mind. Would it be better to define the entrenchment levels in terms of content ( for example - Entrenchment level X covers all provisions regarding factions, elections, and impeachments)? If not, two things happen.

1) When someone proposes something new (like the Judiciary) it's not clear which entrenchment level applies.

2) A proposer might indicate that an amendment went in a certain place (Article X, Section Y) because that section has a lower entrenchment threshold, rather than because the proposed amendment "fits" there.

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Ashcroft Burnham
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Post by Ashcroft Burnham »

[quote="Claude Desmoulins":2qdpvbod]I appreciate your efforts to get this drafted, but a question has come to mind. Would it be better to define the entrenchment levels in terms of content ( for example - Entrenchment level X covers all provisions regarding factions, elections, and impeachments)?[/quote:2qdpvbod]

The problems with that are:

(1) problems of interpretation arise as to precisely what provisions fall into what content classification (does a provision that has a very slight effect on, for example, election scheduling, by, for example, providing a standard definition of periods of time for all parts of the constitution, thereby become entrenched?); and

(2) one might want to entrench some, but not other, things that fall within a particular content description.

In fact, the problems that you suggest below can be resolved very easily indeed:

[quote:2qdpvbod]If not, two things happen.

1) When someone proposes something new (like the Judiciary) it's not clear which entrenchment level applies.[/quote:2qdpvbod]

Actually, it is quite clear: all that one has to do is put the entrenchment symbols in the bill in question, as I have done above (if you notice, the new text of the constitution proposed is itself surrounded by the entrenchment symbols). If they are there, it will be entrenched. If not, it will not be.

[quote:2qdpvbod]2) A proposer might indicate that an amendment went in a certain place (Article X, Section Y) because that section has a lower entrenchment threshold, rather than because the proposed amendment "fits" there.[/quote:2qdpvbod]

There would be no reason for anybody to do this: adding a [i:2qdpvbod]new[/i:2qdpvbod] section to the constitution in the middle of an existing entrenched section would not make the new part entrenched if its proponent did not want it to be. The provisions about changing entrenchment levels themselves requiring the procedure for changing entrenched legislation applies only when symbols are added such that existing parts of the text that are currently entrenched are taken out of entrenchment. For example:

[quote="The constitution":2qdpvbod]

1. First section.

2. Second section.

[/quote:2qdpvbod]

There, both section 1 and section 2 are entrenched. Now, adding entrenchment symbols thus:

[quote:2qdpvbod]

1. First section.

2. Second section


[/quote:2qdpvbod]

would take section 2 out of entrenchment, and thus require a referendum. However, adding a non-entrenched section 1A between sections 1 and two as follows:

[quote:2qdpvbod]

1. First section.

1A. New section.

2. Second section.

[/quote:2qdpvbod]

would not, since section 1 and section 2 would still be entrenched.

(Incidentally, I have just thought that it might help the presentational clarity of the constitution if the parts of the constitution that the symbols mark as entrenched were to be reproduced on the website in a different colour, although it should be the symbol, not the colour, that determines the level of entrenchment, partly because it is more precise to manipulate, and partly because many people are colour blind).

The symbol system that I suggest is actually quite a powerful and flexible tool for entrenching some but not other parts of the constitution as desired, without having definitional problems, or having to entrench entire chapters or nothing at all.

Ashcroft Burnham

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