A Constitution That Can Correct Power — Rethinking Democracy for the 21st Century

 

Institutional correctability must be legally and constitutionally secured if it is to survive changing political majorities, institutional cultures and power relations. Informal conventions and political goodwill are insufficient precisely when democratic controls come under pressure. Without enforceable guarantees, mechanisms for scrutiny and correction may be selectively applied, weakened or blocked while the formal constitutional structure remains intact.

Constitutional design therefore has a dual function. It must restrain power through rights, legal certainty and independent review, but it must also organize the conditions under which errors can be detected and repaired[1]. Correctability should become an explicit property of the legal order rather than an indirect consequence of separate institutions.

The Netherlands is used here as a case study because its strong treaty-based review, prohibition on constitutional review of Acts of Parliament, relatively sober constitutional text, decentralized public administration, and embeddedness in European and Kingdom law create a distinctive reform problem. The proposals should therefore be assessed for Dutch institutional fit; they are not offered as a universal constitutional code.

Under Article 120, Dutch courts may not review Acts of Parliament or treaties for constitutionality. They may, however, review other public action and disapply national rules where required by directly effective treaty provisions or EU law[2]. This creates a specific gap in domestic constitutional enforcement rather than an absence of rights review altogether. A government proposal for partial constitutional review entered the Council of State advisory stage in June 2026, so any recommendation must be compared with its eventual text and parliamentary development[3].

Correctability requires enforceability and durability. Citizens and organizations must possess effective remedies, while independent institutions need sufficient authority and capacity to act even against powerful political or economic interests. Constitutional protection should prevent corrective mechanisms from having to be renegotiated after every political change. Stability then means preserving the continuing capacity for lawful adaptation rather than maintaining unchanged institutions.

Constitutional reform must nevertheless account for political feasibility and path dependence. The Dutch amendment procedure[4] deliberately requires two readings separated by an election and a reinforced parliamentary majority. This protects the Constitution against opportunistic change but also slows urgent structural reform. Previous major revisions show that substantial constitutional change normally emerges from longer processes of legislation, public debate, legal development and institutional acceptance.

A phased strategy can connect normative ambition with institutional reality[5]. Ordinary legislation can first introduce transparency obligations, stronger legal protection, digital regulation and guarantees for independent oversight. Judicial interpretation can further develop existing rights and principles, including those derived from European and international law. Once these practices have acquired legal and social legitimacy, constitutional amendment can consolidate them and protect them against reversal.

The proposals fall into four legally distinct categories: existing constitutional or supranational law; an official reform proposal pending on the stated date; the author’s constitutional recommendation; and a measure achievable through ordinary legislation or administration. The distinction matters because present legal obligation, political feasibility, and constitutional desirability are separate questions. Each proposal should therefore be read together with its explicit status and dated source.

The resulting constitutional program should strengthen the legal order as a coherent whole rather than merely add isolated rights. A general system of fundamental rights should clarify which public authorities are bound, when limitations are permissible, when positive protective measures are required and what effective remedies and non-regression entail. These general provisions should create a constitutional minimum without weakening stricter protections attached to particular rights.

Human dignity should be explicitly recognized as a constitutional foundation[6]. Equality should extend beyond identical formal treatment towards protection against structural disadvantage and the promotion of substantive equality. This recognizes that equal citizenship sometimes requires differentiation or positive measures and that discrimination can arise from institutional structures rather than explicit intention.

Administrative correctability requires a constitutional right to good administration[7]. Public authorities should act professionally, impartially, competently and in service of citizens. People must be heard, obtain relevant information and receive understandable reasons for decisions. Government should also accept responsibility for failures caused by fragmented administrative chains rather than forcing individuals to navigate disputes among agencies.

When administrative correction fails, meaningful access to an independent court must be available[8]. Constitutional guarantees should include a fair hearing, equality of arms, decisions within a reasonable period, legal assistance and enforcement of judicial judgments. Judicial independence must be protected institutionally, financially, personally and internally.

Constitutional review of legislation should become possible through amendment of the existing prohibition[9]. Review can be differentiated: courts may apply intensive scrutiny to classical liberties and minimum constitutional guarantees while exercising greater restraint in complex social, institutional and budgetary matters. This would protect rights without transferring all substantive political choices to judges.

Emergency powers require similar safeguards[10]. Constitutional emergency law should ensure parliamentary involvement, strict time limits, proportionality, transparency and judicial review. Certain rights should remain non-derogable. Temporary crises must not enable exceptional powers to become permanent or eliminate the mechanisms capable of correcting government action.

The Constitution should also protect the material conditions necessary for genuine freedom. A revised right to social security could establish an immediately enforceable minimum for dignified existence while allowing progressive realization of broader social protection. Sanctions, debt recovery or attachment should not reduce people below this minimum.

Healthcare, housing, education and social and cultural development should retain distinct constitutional guarantees concerning availability, accessibility, affordability, quality, inclusion and continuity[11]. Treating these needs only as questions of income would ignore their different institutional requirements.

Environmental protection should combine an individual right to a clean, healthy and ecologically sustainable environment with governmental duties of prevention, precaution, restoration, scientific justification, public information, participation and legal protection. The objective is not to guarantee an environment without risk or change, but to prevent serious damage, unjustified deterioration and persistent governmental inaction[12].

Long-term constitutional responsibility should also address foreseeable ecological, social, financial, digital and institutional burdens imposed on future generations. This does not require treating future persons as fictional litigants. It requires impact assessments, independent advice and institutions capable of representing interests that systematically discount electoral politics.

Digitalization creates additional constitutional needs[13]. Privacy and data protection should be complemented by safeguards against opaque profiling and automated power. Individuals should receive understandable explanations and meaningful human reconsideration when algorithms significantly affect them. Non-discrimination, digital accessibility and limits on concentrated platform power should preserve dignity and autonomy without prohibiting technological innovation.

A correctable democracy must distribute power across multiple levels. Municipalities, provinces and water authorities require protected autonomy and adequate financing when responsibilities are transferred to them. Subsidiarity should assign decisions to the lowest level capable of acting effectively and justly while preserving nationwide rights. Regional cooperation may be necessary for housing, energy, healthcare and infrastructure, but its democratic legitimacy and relationship to existing provinces and municipalities require clearer constitutional organization.

Independent control institutions also need general constitutional safeguards concerning appointments, dismissal, funding, investigative authority and public reporting. Government and parliament should respond substantively to their findings. The Public Prosecution Service requires a specific balance between independence in individual cases and ministerial accountability for general policy.

The democratic infrastructure should guarantee free, equal, secret and periodic elections, independent electoral supervision, transparent party and campaign financing and protection against foreign interference. Citizens should also have meaningful opportunities to participate between elections, although the Constitution need not transform every participatory instrument into an individual right.

Independent knowledge institutions are indispensable. Press freedom should include editorial autonomy, media pluralism and transparency of ownership. Academic freedom and institutional autonomy should protect universities and science. The state must not become an official arbiter of truth; its responsibility is to preserve pluralism, transparency and independence.

A narrowly defined constitutional core, reinforced amendment requirements and prior review by an independent constitutional court could protect democracy against gradual legal self-abolition. Such safeguards must be tightly limited so that they cannot be used against legitimate opposition, minorities or ordinary constitutional change.

Dutch constitutional authority is embedded in European, international and Kingdom law. Parliamentary involvement, subsidiarity, proportionality, transparency and rights protection should guide Dutch participation in European and international decision-making. Reform must also account separately for the Charter for the Kingdom, the autonomy of Aruba, Curaçao and Sint Maarten, and the constitutional position of the Caribbean Netherlands[14].

Each proposal should be tested for necessity, added value over treaty and EU protection, legal determinacy, enforceability, institutional competence, retained democratic discretion, interaction with Kingdom and European law, resource requirements, transition risks, and possible judicialization. Comparative experience should identify both benefits and failure modes. Only safeguards that protect the continuing conditions of lawful democratic correction and require insulation from ordinary reversal should be constitutionalized; operational arrangements should remain adaptable through legislation.

A strong Constitution does not promise that institutions will avoid every mistake. It ensures that mistakes can become visible, affected people can be heard, power can be restrained, and institutional repair can occur. Constitutionalizing correctability would therefore protect society’s continuing capacity to reform itself democratically, lawfully and peacefully[15].

 

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[2] Netherlands Council of State, ‘Constitutionele toetsing,’ https://www.raadvanstate.nl/publicaties/consultaties/constitutionele-toetsing/; Constitution of the Netherlands, arts. 93–94 and 120.

[3]  https://www.rijksoverheid.nl/actueel/nieuws/2026/06/26/kabinet-stuurt-wetsvoorstel-constitutionele-toetsing-naar-raad-van-state

[4] Constitution of the Netherlands, art. 137. State precisely that amendment proceeds through two Acts, with dissolution of the House of Representatives after first reading and a two-thirds majority in both Houses at second reading.

[5] Netherlands Council of State, ‘Contourennota constitutionele toetsing,’ https://www.raadvanstate.nl/publicaties/consultaties/contourennota-constitutionele-toetsing/; Government of the Netherlands, Handreiking Constitutionele Toetsing (2023), https://open.overheid.nl/documenten/ronl-b6627c0d34e2e0c351ac24c3903a085182a01725/pdf.

[6] Charter of Fundamental Rights of the European Union, arts. 1 and 20–26; Sandra Fredman, Discrimination Law, 3rd ed.; Convention on the Rights of Persons with Disabilities, arts. 3 and 5.

[7] Charter of Fundamental Rights of the European Union, art. 41. Clarify that Article 41 is addressed to EU institutions, bodies, offices, and agencies; any Dutch constitutional right would be a national extension informed by European principles, not a simple incorporation of Article 41.

[8] European Convention on Human Rights, arts. 6 and 13; Charter of Fundamental Rights of the European Union, art. 47; Council of Europe, Recommendation CM/Rec(2010)12.

[9] Netherlands Council of State, ‘Wetsvoorstel voor gedeeltelijke opheffing van toetsingsverbod in artikel 120 Grondwet,’ 26 August 2025, https://www.raadvanstate.nl/publicaties/consultaties/wetsvoorstel-voor-gedeeltelijke/; J. C. A. de Poorter, ‘Constitutional Review in the Netherlands,’ Utrecht Law Review 9, no. 2 (2013): 55–75, https://doi.org/10.18352/ulr.229.

[10] European Convention on Human Rights, art. 15; International Covenant on Civil and Political Rights, art. 4; Venice Commission, Respect for Democracy, Human Rights and the Rule of Law during States of Emergency, CDL-AD(2020)014.

[11] International Covenant on Economic, Social and Cultural Rights, arts. 9, 11–13; Constitution of the Netherlands, arts. 20–23; UN Committee on Economic, Social and Cultural Rights, General Comment No. 3, E/1991/23 (1990)

[12] United Nations General Assembly, The Human Right to a Clean, Healthy and Sustainable Environment, A/RES/76/300 (2022); Aarhus Convention, https://unece.org/environment-policy/public-participation/aarhus-convention/text; United Nations, Declaration on Future Generations, annex II to A/RES/79/1 (2024).

[13] General Data Protection Regulation, Regulation (EU) 2016/679, arts. 13–15 and 22; Regulation (EU) 2024/1689; National Ombudsman of the Netherlands, The Citizen Is Not a Dataset (2021), https://www.nationaleombudsman.nl/system/files/onderzoek/Rapport%20-%20The%20citizen%20is%20not%20a%20dataset.pdf.

[14] Charter for the Kingdom of the Netherlands; Constitution of the Netherlands, arts. 132 and 132a. Separate the countries of the Kingdom from the public bodies Bonaire, Sint Eustatius, and Saba; do not use ‘Dutch constitutional authority’ as if these relationships were unitary.

[15] European Commission, 2026 Rule of Law Report: Country Chapter Netherlands, https://commission.europa.eu/document/download/491770ba-4104-4367-8099-878ce1e3b034_en. Use it as a dated external assessment, not as proof of every proposed constitutional reform.