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Digital Transformation of Constitutions – Reviewing Constitutional Amendments by Richard Albert

Šimon Drugda*

I. Introduction

The book by Richard Albert on Constitutional Amendments: Making, Breaking and Changing Constitutions is an outstanding achievement, which should not come as a surprise. Albert is one of the most imaginative and prolific authors writing on constitutional change, and his new book does not disappoint. In Constitutional Amendments, Albert comprehensively examines the design of formal amendment rules, informal change, constitutional unamendability, and more. In this short contribution, let me focus only on a single point of the changing medium of law and thereby, constitutional change.

Much of law today is being remediated from print to digital media. The trend of digitalization does not exclude constitution-making and constitutional change. We should, therefore, consider how the process of digital remediation affects our experience of and interaction with constitutional texts. By examining this subject, I hope that I can contribute in particular to Albert’s insightful analysis of the models of constitutional codification.

In this contribution, I first examine the models of constitutional codification identified by Albert in Chapter 6 of the title. Despite their distinct advantages and disadvantages, the common feature shared between the models is that they assume the constitution is a paper-based document. The assumption follows reasonably from our past experience with the law, which has been historically produced and communicated in writing. The accelerating pace of digital transformation of the law in recent years challenges this experience, which is why, in the remainder of the contribution, I try to reimagine the constitution as a digital code. Using the Slovak Constitution, I show that transforming a constitution into a digital medium expands on the limited functionality of the paper-based document, increasing the ease of access to and the consumption of constitutional law.

II. Constitution as a Written Document

The primary technology of sorting and communication of law around the world has been for a long time written text, which is understandable because writing is durable and accessible. Lawyers, judges, and in our case constitution-makers are proficient in making such texts, chiefly by “using ink to place marks on paper or parchment.”[1] Our experience of constitutions has been mediated through the technology of their production, which is reflected in much of the vocabulary we use for discussing these founding documents, such as “four corners” of a constitution, “parchment barriers,” and provisions “written on the margin.”

Times are changing, however, as core governmental functions move to the digital sphere and jurisdictions around the world increasingly opt for paperless production of law. Most of us already consume and produce law[2] digitally – be it a contract, will, testament, or a constitution. In jurisdictions where the state gazette or law-making process as a genre exist in both paper and digital form, a constitutional amendment may be primarily consumed through a phone, computer, or other electronic devices.

Models of Constitutional Codification

My point goes to Chapter 6 of the book on Finding Constitutional Amendments. In that chapter, Albert looks for visible markers or telltale signs of constitutional change in world constitutions and identifies four models of codification: the appendative, disaggregative, integrative, and invisible model. Each of the four models of codification provides a different answer to questions how and where do constitutions indicate that they have previously been changed.[3] Codification, in this context, refers to the organization of constitutional texts not only structurally as a piece of writing but also temporally across time and spatially across multiple sites of law. Amending actors must consider how to integrate new changes to the constitution while preserving the original text for future reference. Let us briefly survey the four models of codification to illustrate their distinctive features.

First, appendative constitutions attach amendments sequentially at the end of the original text. The chief example of the appendative model of codification is the US Constitution and its 27 amendments. Structurally, the original text of the master-text document remains untouched. New amendments are simply attached to the text. The original text thus serves as a memento of the past mistakes and the progress achieved since.[4] When a US citizen reads the federal Constitution, it is almost as if she was transported into the past when slavery was legal, and not everyone was included in “We the People.” Only if she continues reading, she will get to the amendments and a more familiar terrain that resembles her lived experience.

The appendative model displays vividly the capacity of technology to fold time and space, identified by Bruno Latour.[5] Constitutions – being the primary technology of governance – fold a plurality of temporalities. They are contemporary to our actions today, but they also contain elements connecting present to the past. Although, as we will see, not all constitutions openly confess their past.

Second, constitutions that are disaggregative, such as the constitution of the United Kingdom, “situate their constitutive rules and principles in different sites of constitutional importance.”[6] Similar to the folding of time, the disaggregative model of codification shows that constitutions also connect to a plurality of other sources of law and sites of constitutional meaning. When reading a disaggregative constitution, one must investigate many texts and even non-textual sources of law, such as constitutional conventions and judge-made law.

Third, constitutions that incorporate changes directly to the master text are integrative. Integrative codification is characteristic for making the reader aware of how and where the constitutional text changed by using brackets, notes, superscript, or subscript characters set slightly below or above the regular line of type. These signs disturb the flow of document in order to attract readers’ attention to important context that would be otherwise lost. Contrast this with the final, invisible, model of codification, which provides the readers with a near-seamless experience. There is little in the constitution recording where the integration of a new amendment to the master text occurred; little pointing to prior mistakes.

Constitutions that opt for an invisible mode of codification seem on the surface perfect, but such seamless incorporation requires high drafting costs.

Each of the models has a distinct set of advantages and disadvantages.[7] Integrative and invisible models of codification absorb new changes well, but at the expense of historical fidelity and higher costs of drafting. Both appendative and disaggregative models of codification, on the other hand, maximize historical fidelity at the expense of harmonization. Notwithstanding their relative advantages, all four models of codification identified by Albert are inherently limited by one unrecognized factor, which is the choice of the print medium. But what if we reimagine constitutions as digital codes?

III. Constitution as a Code

Take, for example, the constitutional system of the Slovak Republic, which has a polytextual, seamlessly codified but also digital founding document. The fact that the authoritative version of the Constitution is not only on paper but also electronically blurs the distinction between disaggregative and invisible models of codification, which the Slovak Constitution combines. Let us unpack these three features to see how exactly it happens.

A). Polytextual Constitution

The Slovak Constitution is polytextual, which means that it consists of several separate documents that all have equal force in law. With a plurality of constitutional documents, there is also a higher chance that they may contradict, so the need for harmonization increases. The master-text document explicitly refers to a few standalone constitutional acts, but even a careful reader would not know of several others that had been adopted without explicit authorization.[8] Although the standalone constitutional acts are a discrete element of the system, a failure to recognize their importance invariably results in a failure to appreciate the Constitution as a whole.

B). Implicit Codification

Moreover, when it comes to tinkering with the Constitution, amending actors have historically preferred the invisible model of codification. Neither the master-text constitution nor the plurality of standalone constitutional acts alert the reader to the changes in the document. There are ways to identify alterations to the text, but as Albert rightly notes, the most “accurate way to identify precisely where the textual changes have been made would be to compare the new and old texts side by side.”[9] The only other indication that the Constitution has been changed are transitional provisions at the end of the document and the title page, which tersely enumerates 18 constitutional acts and one decision of the Constitutional Court that have modified the text of the Constitution.[10] Few readers have resources to investigate every amendment by comparing written copies of the document.

C). Digital Constitution

However, the Slovak Constitution is also digital, which is a redeeming quality that mitigates the disorder due to disaggregativechangeand supplies those who find the invisible model of codificationlacking,with a roadmap to the history of the constitutional text.

The rules on law-making in Slovakia provide that the Collection of Laws is published in electronic and paper form, and both of these forms have the same authority.[11] This has obvious implications for not only ordinary legislation but also constitutional amendments, which are adopted in the form of an act of the Parliament. The Slovak Constitution and all of its direct and indirect amendments can be accessed online. After every change, the electronic version of the document highlights provisions that have been altered so that the reader is aware of the modification. The replaced text can be accessed through a hyperlink, and the electronic version of the document enables “discussions”, where users can comment on the Constitution and express their personal opinion on new amendment or changes that they would like to see implemented in the future. These added features of the digital Constitution expand on the limited functionality of the paper-based document and remedy known shortcomings.

IV. Conclusion

Digitalization does not eliminatethe disorder and the need for skillful incorporation or harmonization, but it gives the amending actors and legal professionals new possibilities of organizing information. The concept of a digital constitution can work with each model of codification because it allows the reader to access multiple sites of constitutional importance through the functionality of hyperlinks, which can connect to sources external to the master-text document. By simply clicking on the anchor text, the reader will immediately see what external act the constitution refers to. A digital constitution can also record previous alterations and the history of the document even though the master text remains seemingly untouched.

Even the appendative model of codification, the most challengingcase for digital remediation, may benefit from digitization. Imagine that every provision in the constitution links to a digital library of court decisions, which illustrate the application of the legal term in question and record how have courts reconciled the meaning of a constitutional change with the original constitution. The digital medium allows drafters to connect the plain text with the liquidated meaning of the provisions and provide it in an accessible form for consumption.

Unwieldy constitutional codification acts as a disincentive for members of the public to get familiar with their founding document, for they have only limited time at their disposal. However, a suitable adaptation of a constitution into a digital medium can decrease the required time investment and costs information acquisition. Moving forwards, we should recognize that constitutions could be not only written codes but also think about how our experience changes if we reimagine them as digital codes.

*PhD Candidate at the University of Copenhagen, Centre for European and Comparative Legal Studies (CECS).

[1] Peter M Tiersma, Parchment, Paper, Pixels (University of Chicago Press 2010) 1.

[2] And legal scholarship. I have myself read the reviewed book on kindle, not in the hardback or paperback edition.

[3] Richard Albert, Constitutional Amendments: Making, Breaking, and Changing Constitutions (Oxford University Press 2019) 239.

[4] An interesting experiment would be to reverse the order, starting with the newest constitutional amendment and appending the original text of the US Constitution last.

[5] Bruno Latour, Morality and Technology The End of the Means (2002) Theory, Culture & Society 19, 249.

[6] Albert, Constitutional Amendments, 240.

[7] Of course, real-world constitutions may combine features of the ideal models, which are not mutually exclusive.

[8] Such as, for example, the Constitutional Act No. 493/2011 Coll. on Fiscal Responsibility.

[9] Albert, Constitutional Amendments, 250.

[10] See the decision of the Slovak Constitutional Court, striking down a constitutional amendment due to a conflict with the implicit core of the Constitution (PL. ÚS 21/2014).

[11] Although, in a case of conflict, the paper form still prevails. See Article 12(3) of the Act on Law Making and the Collection of Laws 400/2015 Coll.


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