A Research Agenda For The Future Of Constitutional Amendment

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– Richard Albert*

How should constitutional designers build the rules of constitutional amendment? Surprisingly and unfortunately, scholars have offered few answers to this all-important question. Constitutional designers are instead left with few resources to which they can turn for guidance in constructing the procedures of constitutional change. My recent book on Constitutional Amendments: Making, Breaking, and Changing Constitutions (Oxford University Press, 2019) is an effort to help.

No part of a constitution is more important than its rules of constitutional change. These rules can be used both to enhance and weaken democracy, to expand and retrench rights, and to improve or indeed destroy the constitution itself. Constitutional designers must therefore be especially careful when they fashion the procedures for constitutional amendment. The task involves answering critical questions including what are the required thresholds for change, who can initiate and ratify an amendment, when they may do so, where in the apparatus of government the change must be formalized, and whether there will be anything that cannot be amended. But we know from experience, however, that amendment rules are often the last thing on the agenda of constitutional designers. They focus more closely on questions such as whether to adopt a parliamentary or presidential system, whether to run elections using the rules of proportional representation or first-past-the-post, and whether to entrench social and economic rights. All of these are important choices, but the design of amendment rules should be an equally high priority.

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I am grateful to the National Law School of India Review Online for hosting a symposium on Constitutional Amendments: Making, Breaking, and Changing Constitutions (OUP 2019). Snehil Kunwar Singh and the editorial team have commissioned a series of wonderfully rich and insightful reviews by five scholars from all around the world: M. Paz Avila (Ecuador), Simon Drugda (Slovak Republic), Milton César Jiménez Ramírez (Colombia), Malkhaz Nakashidze (Georgia), and Kritika Vohra (India). Each of their reviews suggests new questions into the study of constitutional amendment and constitutional change. Together, their reviews amount to an exciting research agenda for the future of the field. Space constraints make it impossible for me to collect and comment on all of the questions the reviewers raise, but I will highlight one question from each review and suggest why it is significant for our understanding of constitutionalism.

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In her review, M. Paz Avila probes the distinction I introduce between a constitutional amendment and a constitutional dismemberment. She asks how we might distinguish in turn between a constitutional dismemberment and a constitutional replacement. For me, what matters in a process of constitutional replacement is the self-conscious act of creating a new constitution in a legally discontinuous fashion, with all its attendant risks and rewards. A constitutional dismemberment is different. It is a constitutional change that amounts to more than a proper constitutional amendment but less than a new constitution in the sense that a dismemberment is effectuated using legally continuous forms of change. A dismemberment is a knowing effort to repudiate the essential characteristics of the constitution, including the constitution’s identity, rights commitments, or basic structure. The change is both large yet legal: a constitutional dismemberment transforms the constitutional order without breaking legal continuity. In contrast, a constitutional amendment is a change that does not exceed the boundaries, presuppositions, and current understanding of the existing constitution. A constitutional amendment keeps the constitution coherent with its pre-amendment form and content. What is so important about Avila’s question is her challenge to scholars to explain the significance of maintaining legal continuity—or breaking it—when making a transformative constitutional change.

Malkhaz Nakashidze takes up this question in his review. He draws from his own jurisdiction, the Republic of Georgia, to argue that the ruling party passed a constitutional dismemberment—not a mere constitutional amendment—when it reformed the constitution this past decade. This vast reform was a package of constitutional changes that transformed the constitution from top to bottom, including the form of government, the electoral system, the rights protected in the constitution, and the very identity of the constitution. Nakashidze agrees that these constitutional reforms amounted to a new constitution masquerading as a constitutional amendment. His review highlights the strategic advantage to political actors of deploying a legally continuous form of change to remake the constitution: they can effectively replace the constitution without engaging the serious and risky project of creating a new constitution. They can instead achieve that same substantive goal—replacing the constitution—using only the ordinary rules of constitutional amendment. Nakashidze therefore raises a crucial question for scholars of constitutional change: how may we protect the constitution from its legal but illegitimate replacement?

Legitimacy is the undercurrent in Milton César Jiménez Ramírez’s review. He asks a fundamental question about constitutionalism: to whom does the constitution belong? The correct answer, in my view, must always be the people it governs. A constitution belongs to the people in the same way a deed to a house belongs to the homeowner. Yet all too often the people do not see their constitution as theirs, though with little fault of their own. Political actors do not facilitate popular constitutionalism in the many ways available to them, for instance by supporting civic education initiatives, engaging voters in the duty of self-government beyond voting, and holding advisory referendums on which voters may give guidance to their elected representatives. The conversation about constitutional meaning is most often centered in courts. Policing the boundary separating amendment from dismemberment has been routinely seized by judges in evaluating whether a constitutional amendment is unconstitutional. But constitution-makers should be the ones instead to make this distinction at the moment of constitutional creation when they codify the rules of constitutional change. The rules should state as clearly as possible what in the constitution may be changed using the simple procedures of constitutional amendment and what in the constitution requires recourse to the more onerous rules of constitutional dismemberment. And constitutional designers should involve the people in determining what kinds of change amount to an amendment or dismemberment. There are some examples around the world of this enlightened design of the rules of constitutional change, namely in Austria, Canada, Spain, and Switzerland. Scholars should study these models carefully to determine whether, as I have argued, they present distinct advantages over the standard design that exists in most countries of the world.

Kritika Vohra extends this inquiry with an essential question of her own. Recognizing that there may be a democratic deficit in strong judicial review of constitutional amendments, Vohra presses the point to ask whether there exist profitable alternatives. As Vohra notes, I identify some options of my own, but many questions remain unanswered with regard to their operation. For instance, I suggest a dialogic model of review of constitutional amendments as one possibility. But how can constitutional design ensure a robust and genuine dialogue between reformers and judges? I suggest, as another possibility, a form of pre-ratification review of amendments—before the amendment is promulgated, courts would be involved in advising reformers on their proposed constitutional reforms. Would such a form of advisory review work in all jurisdictions? Vohra asks all the right questions, and I agree with her that the answers will not necessarily be the same across all jurisdictions. Given the cultural, legal, political and social specificities in each place at a given time, the answer must assuredly differ from one place to the next. Vohra’s review yields exciting avenues for future study into alternatives to strong form judicial review of amendments.

Finally, in his review, Simon Drugda focuses his comments on an important question of constitutional form: how will the digital age change the way we read and understand constitutions? This question is relevant for all constitutional states, since every state has a constitution, whether or not it is codified. When a constitution-level change is made to any constitution, there will always be some way to discern that the constitution has been altered. It may not always be easy—as in the case of countries that use the invisible model of amendment codification—and it may not always be pretty—as in the case of some countries that use the integrative model of codification—but it will always be discernible, somehow. Even regimes with an uncodified constitution must indicate how and when the constitution is revised. Drugda challenges us to see the promise and peril of the digitalization of constitutions in identifying when and how a constitution has been altered. It may be, for instance, that a constitutional regime has historically used the appendative model of codification to mark its amendments, but here the use of digital tools would offer the opportunity to post online an unofficial version that indicates the relevant changes using the integrative model. And since most of us consume law online, as Drugda writes, it may be that we will come to treat the unofficial version as the official version, or at least as the most commonly used version. Will that have an effect on courts and parliaments as to what we recognize as valid and authoritative law? More generally, the direction in which Drugda orients us is toward asking how the digitalization of constitutions will change the way we identify what counts as the constitution itself.

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In my invited introduction to this symposium, I wrote that there is no greater gift for an author than what the National Law School of India Review Online has given me in this forum. These reviews by outstanding readers are a joyful present for which I express my gratitude to the entire team of editors and reviewers. I thank once again Snehil Kunwar Singh and the editorial team at the National Law School of India Review Online and I express my thanks to each of the reviewers: M. Paz Avila, Simon Drugda, Milton César Jiménez Ramírez, Malkhaz Nakashidze, and Kritika Vohra. For each and every one of us, time is a precious commodity, and I am thankful that the editors and reviewers—and the readers of the National Law School of India Review Online—have devoted some of theirs to engaging enthusiastically and constructively with the ideas in my book.

*William Stamps Farish Professor in Law, Professor of Government, and Director of Constitutional Studies, The University of Texas at Austin. Email: [email protected].

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