A Roadmap for Constitutional Amendment – Reviewing Constitutional Amendments: Making, Breaking and Changing Constitutions by Richard Albert

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-Malkhaz Nakashidze*

Many countries in the modern world face constitutional changes. Sometimes these changes are related to the formation of a new political system, the transformation of a democracy, or changes in consolidated democracies. Constitutional amendments are a very complex issue, and many important circumstances need to be taken into account in their implementation. Richard Albert’s book is the latest brilliant and complex study that shows countries the way in which constitutional amendments should be drafted, adopted, implemented, and under what conditions this process should be based. Richard Albert expresses the great importance of constitutional change for modern liberal constitutionalism in one important sentence– “[a]constitution and rules for its amendment are like a lock and key: one can hardly work without the other”.  

Such an assessment is fully in line with modern challenges, and points to the importance of the constitutional amendment rules.The author explicitly states that no part of a constitution is more important than the procedures we use to change it. According to this view, constitutional amendment rules are the gatekeepers to a constitution. They can specify who is authorised to initiate an amendment and by what majority; when an amendment proposal becomes effective and later expires; where it must be ratified and by whom; and, what within the constitution is unchangeable. The codification of amendment rules often at the end of the text proves that last is not always least. The book gives one of the most important warnings,that amendment rules may be used to reinforce or destroy the constitution’s institutions, to enhance or diminish the rights it codifies, and to accelerate or reverse progress on the mission the constitution sets for itself – in short, to build or break the very foundations that amendment rules protect from ordinary change. It must be said that the bookis structured in such a way as to provide a roadmap for the implementation of the constitutional amendments, and to improve the constitutional amendment rules. 

In the modern world, various types of constitutional amendments can be implemented. These may be minimal, in terms of amending the text of the constitution, or a fundamental revision. Here, Albert asks one of the key questions– should constitutional designers create separate rules for amending rights and government structures? Are two differentiated amendment procedures enough? The author’s opinion on these questions is that extraordinary reforms generally require more participatory procedures than ordinary reforms, as the latter occur on a smaller scale, and accordingly require a less involved degree of consent to legitimate them. This is one of the biggest challenges in the practice of ongoing constitutional changes in many countries. The author discusses one of the most striking examples set by India and the basic structure doctrine. According to the author, the Forty-Second Amendment to the Indian constitution (adopted in 1976), was a mega-change that reverberated across all three branches of government. It altered fifty-five rules and added two completely new parts to the constitution. The court disallowed key part of this mega-amendment because, in its view, this package of reforms would have destroyed the “basic structure” of the constitution. Here, the author asks the central question as to the role of courts in constitutional change – should courts have the power to invalidate a reform that nonetheless satisfies the conditions specified in the codified rules of amendment? The author believes that the theory of constitutional moments and basic structure doctrine are two of the most influential contributions to the modern study of constitutional change. 

Chapter 2 is one of the most important parts of the book. It discusses the boundaries of constitutional amendment, and argues that some constitutional amendments are not amendments at all. They are self-conscious efforts to repudiate the essential characteristics of the constitution and to destroy its foundations. In this regard, the author consider examples – a controversial change on Social State approved in 2016 in Brazil, the immediate effect of which was to gird the country for spending reductions on health and education; provincial secession of Canada; secession of Quebec from Canada and the requirement of a total reconfiguration of national institutions;  senate reform in Ireland and Italy; and, the war on Japan’s Pacific Constitution. Albert in this case develops an important view that existing theories of constitutional change correctly recognise that some changes are more significant than others. According to these conventional theories of constitutional change, the reforms in Brazil, Canada, Ireland, Italy, and Japan would amount conceptually to creating new constitutions. 

Given the above reasoning and constitutional practice, one of the novelties in the book for constitutionalism is that Albert introduces a completely new conceptof dismemberment.He asks the question – what is a constitutional amendment? In his opinion, the changes in Belize, Brazil, Canada, and so on, have the effect of transforming their constitutions. Their shared objectives are to destroy and remake the core of the present constitution, and these changes should be understood as more than amendments to the constitution. According to Albert,in this new content-based approach to constitution change, these reforms are not constitutional amendments – they are better understood as constitutional dismemberment. They do violence to the existing constitution, whether by remaking its identity, repealing or reworking a fundamental right, or destroying and rebuilding one of its central structural pillars. A constitutional dismemberment can both enhance and weaken democracy, depending on what in the existing constitution is dismembered. 

One of the merits of the book is the detailed analysis of the peculiarities of unamendability. According to Albert, there are three different varieties of unamendable rules, though only the first two have been fully developed in studies of constitutional change. These are, firstly, codified unamendability, which a reference to a rule that is formally entrenched in the text of a constitution; secondly, interpretive unamendability, which is the result of a declaration or recognition by legal or political elites that a certain rule ought to be treated as unamendable, even though no official constitutional enactment entrenches the rule against change; and thirdly, constructive unamendability, which springs from neither design nor official practice, but rather from high political barriers that make amendment virtually impossible. 

In respect of the codified unamendability, Albert discusses several developments in constitutional amendment based on its goals. These are reassurance, reconciliation, preservation, transformation, crisis management,and value expression. The use of unamendability as reassurance is not concerned with resolving a disagreement between opposing parties, while the purpose of reconciliation is to reconcile opposing parties to end a conflict. The aim of preservation is to preserve a variety of features in which there is couched deep meaning and value for the country. For instance, Islam as the official religion of the state in the Afghan, Algerian, and Iranian constitutions; federalism in Brazil; and the unitary character of the state in Indonesia. The use of unamendability as transformation encompasses the transformation of the state and society, and unamendable human rights – civil, political, economic, and social. Crisis management aims to help manage moments of crisis – disabled constitutional amendment process during an emergency, martial law, or a state of siege or war, as in the constitution of Montenegro. Value expression as unamendability serves an additional purpose related to each of the others – to express constitutional values. The Cuban constitution’s absolute entrenchment of socialism is a statement of the highest significance of socialism in the country. Similarly, republicanism is France’s most important constitutional value.

According to the book, the second important dimension of constitutional unamendability, which is problematic in practice for many countries today, is interpretative unamendability–constitutional states sometimes recognise unamendability even where it is not codified in the constitution text. Most commonly, this declaration of unamendability will be made by a court, but it may be also made by a legislature that possesses the power of binding constitutional interpretation. In this regard, Albert considers how the basic structure doctrine – that the amendment power is limited by implication of its very nature, even where the constitutional text does not recognise any limitation on its use – has journeyed beyond India to many countries since its articulation half a century ago. Albert also considers a third category of unamendability that he has described as constructive unamendability. Constructive unnamedability arises when the constitutional text defines a rule as freely amendable, but the present political reality reveals that it is not.

One of the merits of this book is that the author proposes one of six formal amendment pathways. What determines a constitution’s formal amendment pathway are answers to two questions – first how many amendment procedures are available, including options for initiation and ratification; and second, may be these procedures be used to amend all or only some parts of the constitution? The first question yields two broad categories – single-track, for formal amendment rules that codify only one procedure for amendment; and multi-track, for those that codify more than one. The second question yields three categories –  comprehensive, which makes all amendable rules susceptible to amendment by all available procedures for formal amendment; restricted, where each amendable rule is amendable only by a specifically designated procedure; and, exceptional, which is otherwise a comprehensive pathway, except for its creation of a single extraordinary procedure reserved exclusively for one constitutional rule, or a set of related rules. 

The book discusses the example of my country, Georgia, as to how the ruling party managed to implement fundamental constitutional amendments through a simple procedure. The party’s constitutional changes impose restrictions on the rights of its political opposition, most notably by banning electoral blocks, abolishing the existing semi-presidential system, creating a pure parliamentary system that amplifies the power of the governing majority and gives it free rein to do virtually anything it wants. These constitutional changes also give Georgian Dream, the ruling party, the power to stack the judiciary in its favor, select judges of the Supreme Court by a simple parliamentary vote, adopt new social and political values into the constitution (such as to define Georgia as a “social state”), place restrictions on private property, and limit marriage to the union of one man and one woman. This major reform is a new constitution masquerading as a constitutional amendment. This historic constitutional reform should not have been passed with an easy legislative vote, as an extraordinary constitutional transformation on this scale should have been passed with more involved procedures of change and popular legitimation. Albert views such constitutional changes as dismemberment,and not as constitutional amendments. Albert argues that some constitutions make this distinction between amendment and dismemberment explicit, and accordingly codify procedures for amendment that differ from those that must be used for dismemberment.

One of the important issues in modern constitutionalism is the constitutional review of constitutional amendments by the court. One of the great achievements of this book is a roadmap for the court to invalidate amendment. Firstly, Albert mentions that the constituent power is a pre-constitutional authority that controls both how a constitution is made, and also how constituted powers exercise their limited delegated authority to change the constitution in the name of the people. The judicial act of striking down a transformative change is a justifiable intervention to safeguard the terms of the original bargain approved by the people. On this view, the doctrine of unconstitutional amendment is a triumph of democracy. Albert develops a roadmap –  how the court could choose to invalidate amendment where the constitution does not codify anything as formally unamendable. An amendment could be ruled unconstitutional because it was made using the wrong procedure, because it violates time-related rules for its adoption and ratification, or because there was an irregularity in administering the vote. Another set of strategies for invalidating amendment is aimed at evaluating the content of the amendment for its coherence with the existing constitution. This content-based review involves what the amendment is about, and has three possibilities. The first one is where a constitutional amendment might violate an important principle deemed constitutive of the constitution itself. The second strategy is to interpret the constitution as anchored in an evolved norm that may not have been evident at the founding, but that the judiciary has over the course of developing its jurisprudence identified as a special norm that sits at the apex of the constitutional order. The third strategy is to define a given amendment as a new constitution in disguise. This third strategy contains two justifications –firstly, the court could find that a constitutional amendment is unconstitutional when measured against an unwritten constitutional norm; or, secondly, it could be a case of supra-constitutional law. If a country is a member of an international organisation governed by a charter of rules, the country’s amendments could be violative of the charter.

In this case, the author’s opinion is that the doctrine is most important in countries where the constitution can be easily amended, as in India, whose constitution is in most cases amendable by a simple legislative majority. In contexts such as these, the court can arguably serve as a check on bare legislative majorities that might exploit the permissive rules of constitutional amendment to make transformative constitutional changes without sufficient deliberation or popular support. Given the history of constitutional changes discussed above, the constitutional court can play an important role, for example in Georgia, where the constitutional court has considered several cases, chosen a completely formalistic approach, and rejected control over the constitutionality of constitutional amendments.

Finally, one of the main conclusions of this book is that no part of a constitution is more important than its rules of change. Reformers can use them to enhance or weaken democracy, to expand or retrench rights, and improve or indeed destroy the constitution itself. Yet, we know from experience that amendment rules are often the last thing on the agenda in constitution-making.The important goal of the book has been achieved – the essence of the concepts of constitutional amendments and constitutional dissmemberment, and the differences between them, have beenclearly and exhaustively shown. There are presented main conclusions: the first, an amendment keeps the constitution coherent with itself but a dismemberment marks a fundamental break with the core of constitutional change, a constitutional dismemberment entails a major change to one or more of a constitution’s core commitment, a dismemberment alerts a fundamental rights, a constitutional structure, or a central aspect of the identity of a constitution and a constitutional dismemberment is simultaneously a destruction and reconstruction of the constitution. It should also be noted that the book recommends that designers can create different procedures for amending the constitution and others for dismembering it, the former requiring a lower degree of agreement than the latter. The second, in Albert’s view,what emerges is a hierarchy of constitutional importance, with some parts or principles of the constitution assigned to amendment procedures, and others to dismemberment procedures.The third, pathways – constitutional designers can choose one of two categories for how many procedures to codify – single-track, for formal amendment rules codifying only one procedure for formal amendment; and multi-track, for formal amendment rules codifying more than one procedure. These tracks differ according to the institutions authorised to initiate a formal amendment, to make an amendment proposal, and to ratify an amendment. In conclusion, the book is a complex study on the subject of constitutional amendment, which includes not only a discussion of concepts at the theoretical level, but also takes into account different contextsand practices,and is a great sourcefor both scholars and practicing constitutional designers.

*Associate Professor, Jean Monnet Chair, Batumi Shota Rustaveli State University, Georgia. He can be reached at: [email protected]

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