The modification of article 168 of the Spanish Constitution through the ordinary procedure

Abstract

Abstract

The low activation of the reform power in the Spanish constitutional order has been justified by the doctrine, among other reasons, by the excessive rigidity and complexity of our reform procedures, and more particularly the one enshrined in art. 168. In this work we reflect upon the modification of this precept, given the existence of a classic debate about the most appropriate procedure to undertake this task. More specifically, we raise the possibility that, on certain occasions, its reform could be carried out through the procedural technique provided for in art. 167 of the Spanish Constitution. Our proposal, based on a literal interpretation of the precept combined with a teleological interpretation allows us, on the one hand, to preserve respect for the wording of the norm and, on the other hand, to keep in mind the purpose with which it was incorporated into our Constitution.

Summary:
I. INTRODUCTION. II. THE AGGRAVATED PROCEDURE OF CONSTITUTIONAL REFORM. A. On the full review. B. On the partial review: the «geographical» selection of art. 168. C. On the affectation clause. III. DOCTRINAL DIVERGENT POSITIONS: ORDINARY REFORM VS. SELF-REFORM. A. Thesis of the suitability of the ordinary reform procedure to modify art. 168 CE. B. Doctrinal positions in favor of the reform of art. 168 through the procedure it establishes itself. IV. A CONTRIBUTION TO THE DEBATE. A. Interpretation of the affectation clause and respect for the Constitution. B. Reform of the Constitution and fundamental constitutional decisions. C. Identification of the fundamental decisions. V. THE VARIATION OF THE PROCEDURE ACCORDING TO THE TYPE OF REFORM PROPOSED. VI. CONCLUSIONS