Introductory Note: Jumpstarting the Study of Constitutional Amendment

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– Richard Albert*

The late political scientist John Burgess correctly described the rules of constitutional amendment as “the most important part of a constitution.”[1] They are the gatekeepers to the constitution. They give political actors a roadmap to alter the constitution,[2] they identify what is subject to or immune from change,[3] they encourage public deliberation on constitutional meaning,[4] they foster stability by making the constitution harder to change than regular legislation,[5] and they make it possible to achieve transformative constitutional reform without recourse to revolutionary means.[6] At their core, amendment rules reflect both faith and distrust in political actors: they authorize alterations to the constitution,[7] though they limit how and when constitutional modifications are permissible.[8] Given the many functions served by these essential rules of amendment, we would expect constitutions to entrench them, and indeed almost all of them do.[9]

Yet the study of constitutional amendment has until only recently been a rather niche interest in the field. Scholars have historically been more interested in the study of informal amendment,[10] which we can define as “the alteration of constitutional meaning in the absence of textual change.”[11] The relative disinterest in formal amendment as opposed to informal amendment is both surprising and problematic because few questions in constitutional design are more important than how to structure the rules of constitutional amendment.[12]

There was a wide opening, then, to help advance our understanding of amendment rules. I therefore set out to examine the many facets of constitutional amendment in Constitutional Amendments: Making, Breaking, and Changing Constitutions (Oxford University Press, 2019). I wrote Constitutional Amendments both as a roadmap for navigating the intellectual universe of constitutional amendment and also as a blueprint for building and improving the rules of constitutional change. The book seeks to blend theory with practice, drawing from dozens of constitutions in every region of the world to answer two all-important questions: what counts as an amendment and how should constitution-makers design the rules of constitutional amendment?

The first of these questions matters now more than ever. Reformers are exploiting the forms of constitutional change, testing the limits of legal constraint, undermining the norms of democratic government, and flouting the constitution as written to create entirely new constitutions that masquerade as ordinary amendments. And the second question is central to the performance and endurance of constitutions. Constitutional designers have virtually no resources to guide them in constructing the rules of amendment, and scholars do not have a clear portrait of the significance of amendment rules in the project of constitutionalism. I seek in Constitutional Amendments to explain the significance of amendment rules and to show that they open a window into the soul of a constitution, exposing its deepest vulnerabilities and revealing its greatest strengths.

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Virtually all constitutions codify amendment rules. But why? What are the uses and purposes of constitutional amendment rules? Amendment rules of course create a legal process for reformers to alter the constitution. But amendment rules serve important purposes even if the constitution is never amended at all; they have fundamental functions beyond the obvious one of textual alteration. I show in Chapter 1 of Constitutional Amendments that amendment rules have three categories of uses: formal, functional, and symbolic. Their formal uses include repairing imperfections, distinguishing constitutional from ordinary law, entrenching rules against easy repeal or revision, and establishing a predictable procedure for constitutional change. Their functional uses include checking the court, promoting democracy, heightening public awareness, pacifying change, and managing difference. Symbolically, amendment rules can be used to express constitutional values. This chapter explains all of these many uses of amendment rules and illustrates each of them with examples drawn from around the world, including Afghanistan, Albania, Algeria, Bosnia and Herzegovina, the Central African Republic, Chad, China, Cuba, Ecuador, Germany, Kazakhstan, Kiribati, Saint Lucia, South Africa, Spain, the Russian Federation, the Soviet Union, Ukraine, the United States, and Yugoslavia. In this chapter, I also interrogate the symbolic uses of amendment rules: how can we know whether the values expressed in constitutional amendment rules reflect authentic political commitments? I explain with reference to the German Basic Law that it is possible to evaluate the authenticity of the values in amendment rules by probing the design of amendment rules and their subsequent interpretation.

In Chapter 2, I offer a provocative claim: 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. They dismantle the basic structure of the constitution while at the same time building a new foundation rooted in principles contrary to the old. Changes on this scale are not properly called constitutional amendments. They are better understood as constitutional dismemberments. A constitutional dismemberment is incompatible with the existing framework of the constitution. As I explain, a constitutional dismemberment intends deliberately to disassemble one or more of the constitution’s elemental parts by altering a fundamental right, an important structural design, or a core aspect of the identity of the constitution. To use a rough shorthand, the purpose and effect of a constitutional dismemberment are the same: to unmake the constitution. But what, then, is a constitutional amendment? This chapter explains that there are four fundamental features to a constitutional amendment: its subject, authority, scope, and purpose. The most important feature of an amendment is its scope, which at all times must not exceed the boundaries of the existing constitution. This chapter therefore defines a constitutional amendment both in terms of what it is and what it is not, with illustrations drawn from Barbados, Belize, Brazil, Canada, Dominica, Guyana, Ireland, Italy, Jamaica, Japan, New Zealand, and the United States.

Chapter 3 moves from the forms of constitutional change to the difficulty of constitutional change by asking a question that has long been the subject of parlor games at academic conferences: which constitution is the world’s most difficult to amend? Scholars of comparative constitutional law almost uniformly answer the United States Constitution. It has been amended relatively few times since its creation in 1787, thousands of amendment proposals have failed, and today it seems virtually impossible to amend. But is this enough to prove that the United States Constitution is the hardest to amend? This chapter examines studies of amendment difficulty that focus on the codified rules of amendment, and concludes that none of them is a reliable ranking of relative rigidity and moreover that all of them have a fatal flaw: they either ignore or fail to account for non-textual sources of amendment ease or difficulty. These non-textual sources of amendment ease or difficulty include uncodified changes to formal amendment rules, popular veneration for the constitution, cross-temporal variability in amendment difficulty, and prevailing cultures of amendment. I highlight three different cultures of amendment, each either exacerbating or alleviating amendment difficulty: amendment culture as an accelerator of change, as a decelerator of change, and as an incapacitator of change. This chapter also illustrates how and theorizes why formal amendment rules are sometimes modified in ways that ultimately remain invisible to scholars who take a narrow text-based approach to measure amendment difficulty. I conclude both that studies of amendment difficulty are doomed to failure and that they may not be worth the effort. In this chapter, I explore constitutions from Argentina, Australia, Austria, Belgium, Belize, Bolivia, Canada, Chile, Colombia, Costa Rica, Denmark, the Dominican Republic, Equatorial Guinea, Finland, France, Gabon, Germany, Greece, Haiti, Iceland, India, Ireland, Israel, Italy, Japan, the Netherlands, New Zealand, Norway, Poland, South Africa, South Korea, Spain, Switzerland, Taiwan, Tanzania, the United Kingdom, the United States, Venezuela, Western Samoa, as well as from American states, the Commonwealth Caribbean, and the European Union.

Constitutions sometimes designate certain rules as unamendable. These unamendable rules are resistant to all legal forms of change. They cannot be amended using the codified rules of change. Nor can they be repealed. The only way properly legal way to change them is to rewrite the constitution. Why do constitutional designers codify these unamendable rules? In Chapter 4, I identify seven reasons why constitutional designers choose to codify unamendable rules. In explaining these reasons, I discuss many different examples of codified unamendability around the world. I also explain that unamendable rules can arise in two other forms beyond intentional constitutional design in the codified text of the constitution. First, interpretive unamendability emerges from a judicial decision or an unwritten constitutional norm rooted in the dialogic interactions of political actors, for instance the basic structure doctrine in India and the substitution of the constitution doctrine in Colombia. Second, constructive unamendability arises as a result of the practical impossibility of gathering the required majorities to amend a rule despite that rule being freely amendable in theory. I show how constructive unamendability occurs and operates with reference to the Equal Suffrage Clause in the United States Constitution, the phenomenon of constitutional veneration, and the use of omnibus amendment bills in Canada as well as the challenge of multi-party incompatibility. I then connect the three varieties of unamendability to the discussion in Chapter III on measuring amendment difficulty. I suggest that unamendability further complicates the effort to measure amendment difficulty across jurisdictions and very likely makes it impossible to do so with any reliability. In this chapter, I explore constitutions from Afghanistan, Algeria, Australia, Austria, Bahrain, Belgium, Benin, Bosnia & Herzegovina, Brazil, Burundi, Canada, Cape Verde, the Central African Republic, Colombia, the Republic of Congo, Cuba, Czech Republic, El Salvador, Estonia, France, Germany, Ghana, Guatemala, Haiti, Honduras, India, Iran, Italy, Kenya, Luxembourg, Malaysia, Mauritania, Moldova, Montenegro, Morocco, Namibia, Niger, Norway, Portugal, Qatar, Romania, Senegal, Spain, Switzerland, Taiwan, Togo, Turkey, the United Kingdom, the United States as well as from American states.

Constitutional amendment rules were once very simple in their design. A constitution commonly codified a one-size-fits-all procedure for amendments to any part of the constitution, and that was all. Today, however, amendment rules are considerably more complex in their design and in the possibilities they offer constitutional designers for structuring their rules of constitutional change. In Chapter 5, I examine the architecture of constitutional amendment, specifically the options available to constitutional designers to build their rules of change. I also weigh the strengths and weaknesses of these options and offer some guidance on when one choice may be better than another. I compare single-track and multi-track pathways in constitutional amendment, single-subject and omnibus amendment bills, and procedures for amendment and dismemberment. I also explain why codified unamendability is problematic for democracy and suggests an alternative design that can achieve the expressive function of unamendability while not denying the fundamental right of amendment. I moreover examine the important relationship between time and change, namely how constitutional designers can use and manipulate time in their design of amendment rules. Finally, I explore judicial review of constitutional amendments, beginning first by explaining eight strategies a court can use to invalidate an amendment and then elaborating several alternatives to the judicial invalidation of constitutional amendments. What results is a deep dive into the design of amendment rules, with reference to constitutions from Albania, Algeria, Australia, Austria, Belgium, Brazil, Canada, Cape Verde, Colombia, Costa Rica, Denmark, Ecuador, Estonia, Fiji, Finland, France, Georgia, Germany, Ghana, Greece, Iceland, India, Ireland, Israel, Italy, Japan, Luxembourg, New Zealand, Nicaragua, Nigeria, Norway, Peru, Poland, Portugal, Russia, South Africa, South Korea, Spain, Sweden, Switzerland, Taiwan, Togo, Turkey, the United Kingdom, the United States as well as from American states.

Constitutional designers rarely ask two questions they should: how and where will the constitution indicate that it has been amended? Will they record the change at the end of the original constitution, or will they insert it directly into the founding text? And what about uncodified constitutions: how will they identify constitution-level changes? In Chapter 6, I offer the first systematic analysis into the options available to constitutional designers to codify constitutional amendments. I identify and illustrate the four major models of amendment codification in the world: the appendative model in the United States, the integrative model in India, the invisible model in Ireland, and the disaggregative model in Great Britain. How and where to mark changes to the constitution entails implications for how interpreters will read the constitution in the course of adjudication, for whether the constitution will become a focal point of reference in constitutional politics, for how intensely the text will be venerated if at all, and also for the nature of the relationship between citizens and their constitution. The way amendments are recorded is ultimately a choice about how and indeed whether a people chooses to remember its past. Today, inexplicably, constitutional drafters do not consider the consequences of amendment codification, but they should. I explain why the choices involved in amendment codification concern more than mere aesthetics, with reference to constitutions from Canada, Great Britain, India, Ireland, Israel, Mexico, New Zealand, Norway, Saint Lucia, Spain, and the United States.

I close the book, in the final chapter, with an observation that should give us pause: there are presently too few resources to guide constitutional designers in building the rules of constitutional amendment. I therefore offer, in this chapter, a roadmap for designing constitutional amendment rules. As we would do when building an edifice, constructing the rules of constitutional change requires careful thought about design and operation. I explain that amendment rules are organized around four sets of fundamental choices that require designers to set the foundations of the polity, to choose among pathways to channel the power of amendment, to choose specifications that will put the foundations and pathways into operation, and finally to choose how and where amendments will be recorded. I also explain that formal amendment as a practice reflects the democratic values of the rule of law, including predictability, transparency and publicity. There are of course advantages to informal amendment and methods of change that violate the codified rules of change, but there are even greater democracy-enhancing virtues that are possible only with formal amendment. I consider several constitutions in this closing chapter, including constitutions from Austria, Costa Rica, Great Britain, India, Ireland, Spain, Switzerland, and the United States.

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There is no greater gift for an author than what the National Law School of India Review Online has given me today. Snehil Kunwar Singh and the editorial team have so very generously commissioned reviews of my book on Constitutional Amendments—reviews written by five exciting 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). I look forward to reading their scholarly reviews, and also to commenting on them in a response I will prepare to close this symposium in the days ahead.

For now, I express my most sincere thanks to the reviewers for devoting some of their limited time to engaging with my book, and once again to the entire editorial team for this wonderful gift.

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


[1] John Burgess, Political Science and Comparative Constitutional Law, Volume I (Boston: Ginn & Company, 1893, 137.

[2] Rosalind Dixon & Richard Holden, “Constitutional Amendment Rules: The Denominator Problem,” in Tom Ginsburg (ed.), Comparative Constitutional Design (Cambridge: Cambridge University Press, 2012) 195 at 195.

[3] Jon Elster, Ulysses Unbound: Studies in Rationality, Precommitment, and Constraints (Cambridge: Cambridge University Press, 2000) at 101-04.

[4] Raymond Ku, “Consensus of the Governed: The Legitimacy of Constitutional Change,” Fordham Law Review, 64 (1995), 535 at 571.

[5] Kathleen Sullivan, “Constitutional Constancy: Why Congress Should Cure Itself of Amendment Fever,” Cardozo Law Review, 17 (1996), 691 at 695.

[6] Walter Dellinger, “The Legitimacy of Constitutional Change: Rethinking the Amendment Process,” Harvard Law Review, 97 (1983), 386 at 431.

[7] Brannon P. Denning & John R. Vile, “The Relevance of Constitutional Amendments: A Response to David Strauss,” Tulane Law Review, 77 (2002), 247 at 275.

[8] Donald J. Boudreaux & A.C. Pritchard, “Rewriting the Constitution: An Economic Analysis of the Constitutional Amendment Process,” Fordham Law Review, 62 (1993), 111 at 123-24.

[9] Francesco Giovannoni, ‘Amendment Rules in Constitutions’ (2003) 115 Pub Choice 37, 37.

[10] See, e.g., Bruce Ackerman, We the People—Volume I: Foundations (Cambridge: Harvard University Press, 1991); Bruce Ackerman, We the People—Volume II: Transformations (Cambridge: Harvard University Press, 1998); Bruce Ackerman, We the People—Volume III: The Civil Rights Revolution (Cambridge: Harvard University Press, 2014); Brannon P. Denning, “Means to Amend: Theories of Constitutional Change,” Tennessee Law Review, 65 (1997), 155; Peter Oliver, “Canada, Quebec, and Constitutional Amendment,” Toronto Law Journal, 49 (1999) 519; David A. Strauss, “The Irrelevance of Constitutional Amendments,” Harvard Law Review, 114 (2001) 1457.

[11] Heather K. Gerken, “The Hydraulics of Constitutional Reform: A Skeptical Response to Our Undemocratic Constitution,” Drake Law Review, 55 (2007), 925 at 929.

[12] See Sanford Levinson, “Designing an Amendment Process” in John Ferejohn, Jack N. Rakove & Jonathan Riley (eds.), Constitutional Culture and Democratic Rule (Cambridge: Cambridge University Press, 2001) 271 at 275.

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