the_limits_of_the_constitution_are_the_limits_of

A popular saying states that an exception confirms the rule. While there is some exaggeration in this, it remains a fact that the occurrence of exceptional situations allows for a better understanding of the essence of normal situations. The same applies when we pose the question regarding the role and function of the preamble in constitutional documents and constitutional jurisprudence. In most constitutions around the world, the preamble is read as something necessary (or even essential) on one hand, while on the other, although usually formulated in a lofty manner, it is not treated with the same seriousness as the main text of the constitution. In many cases, it serves a "decorative" function, a rhetorical element that, in a dignified form, expresses the spirit of the political community constituted on the basis of values and beliefs that find reflection in political law. More in-depth interpretations of the preamble indicate that it serves as a foundation or – to use a metaphor – an anchor, meant to ground the constitution in places from which one should not stray too far in further interpreting or amending the constitution.

If we assume that the function of the preamble is to ground the text of the constitution in more enduring and fundamental values, one of the more interesting cases that represents an exception to this rule is the example of the constitution of the Republic of North Macedonia. As a result of the provisions of the Ohrid Peace Agreement (2001), the preamble to the constitution was replaced with a new preamble. While the content of this change deserves separate discussion, it is worth noting here the very form of the change, which was carried out through the constitutional amendment procedure (Atanasov, 2023; Kuqi, 2021). The part that was intended to indicate the direction of constitutionalism and set the limits of its interpretation itself underwent change through an instrument contained within the constitution itself. What can this peculiar aberration tell us about the essence of the preamble in general? The Macedonian example stirs curiosity and prompts the search for similar cases and precedents. After a somewhat deeper review of the constitutions of contemporary states, it turns out that preambles can undergo various operations.

Indeed, one can completely replace the preamble with a new preamble without using the constitutional amendment mechanism. This possibility is indicated by the cases of Lebanese preambles from 1926 and 1990. This form of change occurs due to the need for updating and incorporating content into the preamble that is appropriate to the political conditions.

An example similar in form to the Macedonian one, but characterized by a much smaller scope of change to the structure of the text itself, is the example of the constitution of the Republic of India. In 1976, due to the political will to change the ideological course of the state, words indicating its socialist and secular character were added to the preamble. This is thus a clearly politically motivated intervention in the foundation of constitutionalism. While the Indian example is associated with an ideological issue, we can also find examples where the change was motivated by specific political events that triggered the need to update the legal state.

An example of this type of constitutional maneuver is the amendment to the preamble of the Basic Law in Germany, which took place after reunification in 1990, as expressed in the words about "completing the unity and freedom of Germany" (Voermans, Stremler, Cliteur, 2017). This case provides an argument for the necessity of reflecting issues of fundamental importance for a given political community in the preamble.

However, the variations in changing the preamble do not end here. Let us look at the French example, where the constitution has the structure of a so-called "matryoshka," as it includes several constitutional documents that have appeared successively over time. From the perspective of constitutional flexibility, the most interesting change in this context is the modification of the 1946 preamble through the new preamble of the 1958 constitution. The content of this change involved the removal of a segment concerning the protection of embryonic life. Sticking with the French constitution, one can point to another variant of preamble modification by adding a completely new document to the collection of constitutional documents. In 2005, this collection was expanded to include the Environmental Charter concerning ecological issues.

Another example worth noting is the possibility of changing the preamble, which occurs through constitutional change – but what is worth emphasizing – via an amendment to the federal constitution that alters the preamble at the level of the entity within the federation, which took place in connection with the change to the preamble of the constitution of the Republic of Srpska, which is part of Bosnia and Herzegovina (Frosini, 2017).

Another interesting possibility is to add a new preamble while simultaneously retaining the old one. This gives the document a sense of continuity and respect for tradition. A prime example is the preambles to the Latvian Constitution from 1922 and 1993 (Voermans, Stremler, Cliteur, 2017).

To complete this picture of variations on constitutional maneuvers regarding the preamble, one must point out the explicit prohibition against making any changes to the preamble, an example of which can be found in the Constitution of Nepal from 2015, where the main text of the constitution prevents any alteration of the preamble and other elements of the constitution (Orgad, 2010).

Looking at extreme cases, the essence of the preamble becomes clearer. However, one cannot shake the impression that regardless of the context, the preamble cannot be reduced to the role of a meaningless ornament. Rather, it is an important part of the mechanism regulating the political system using constitutional tools. The flexibility of the constitution, alongside its inclusiveness and detail, is a fundamental feature of all constitutions (Elkins, Ginsburg, Melton, 2009). The method of its amendment and the scope of changes that can be made seem to be a key issue in constitutionalism. However, one cannot escape the impression that in many cases, the boundaries of the constitution run according to the limits of the imagination of its creators and interpreters. Furthermore, a crucial question that can be raised in this context is about the order of importance of constitutional provisions. Paraphrasing the Euthyphro dilemma from Plato's dialogues, one might ask: Do we include something in the constitution because it is important and significant, or is it important and significant because it has been included in the constitution? If we include something in the constitution, we want to highlight that matter by giving it a special – constitutional – status, which involves imposing restrictions on changing that part of the law. The constitution thus serves as a kind of legal stabilizer, but it can itself be subject to changes (as indicated above in a selected, single aspect of constitutional flexibility). Let's take this further: is it possible for a constitutional change, carried out according to the letter of the constitution, to contradict the spirit of the constitution? Is an unconstitutional change of the constitution possible? It seems that it is impossible to answer these questions without referring to certain meta-principles existing outside the written text of the constitution. This means that unwritten constitution is inherently an inseparable component of the written constitution and includes constitutional conventions, rules arising from interpretative practices, the tradition of jurisprudence, but also very often a broader political context. In this arrangement, constitutional law itself, although it clearly constitutes the core of constitutionalism, does not exhaust the entirety of the horizon of its functioning.

Perlikowski, Ł. (2025). Flexibility of Constitutions as a Factor of Political Stability. The Case of Western Balkans States, (forthcoming)

Sources:

Atanasov, P. (Ed.) (2023). Can Volatile Societies Support Stable States? Case Studies of Bosnia and Herzegovina, Montenegro, Kosovo and North Macedonia. Skopje: Institute for Sociological, Political and Juridical Research University “Ss. Cyril and Methodius”.; Elkins, Z., Ginsburg, T., & Melton, J. (2009). The Endurance of National Constitutions. Cambridge: Cambridge University Press.; Frosini, J. O. (2017). Constitutional Preambles: More than Just a Narration of History. University of Illinois Law Review. vol. 2, Bocconi Legal Studies Research Paper No. 3516805.; Kuqi D. (2021). Constitutional – Legal Engineering of the Model of Democracy in North Macedonia. Studia Europejskie – Studies in European Affairs, 1/2021, 147-167.; Orgad, L. (2010). The Preamble in Constitutional Interpretation, International Journal of Constitutional Law, Vol. 8, Iss. 4, p. 714–738.; Ummareddy, N., & Alam, A. (2021). What Do Preambles Do? A Study of Constitutional Intent and Reality. Studies in Indian Politics, 9(2), 221-238.; Voermans, W., Stremler, M., & Cliteur, P. (2017). Constitutional Preambles: A Comparative Analysis. Cheltenham, UK: Edward Elgar Publishing.

#2 Ł. Perlikowski (18.08.2025). The boundaries of the constitution are the boundaries of imagination, https://lukaszperlikowski.pl/blog

*Photograph: Makedonium in Krushevo, Macedonia 2024 (personal archive)