Table Of ContentConstitutional Amendments
Constitutional
Amendments
Making, Breaking, and Changing
Constitutions
RICHARD ALBERT
1
Constitutional Amendments. Richard Albert.
© Oxford University Press 2019. Published 2019 by Oxford University Press.
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Library of Congress Cataloging-i n- Publication Data
Names: Albert, Richard, author.
Title: Constitutional amendments : making, breaking, and changing constitutions /
Richard Albert.
Description: New York : Oxford University Press, 2019. | Includes bibliographical references
and index.
Identifiers: LCCN 2019002161 | ISBN 9780190640484 ((hardback) : alk. paper)
Subjects: LCSH: Constitutional amendments. | Constitutional law. | Constitutions.
Classification: LCC K3168 .A43 2019 | DDC 342.03—dc23
LC record available at https://lccn.loc.gov/2019002161
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Contents
Acknowledgments ix
Introduction— Uncharted Terrain in Constitutional Amendment 1
Scales of Change 4
The Routine and the Technical 4
Revolution and Renewal 6
The Range of Amendment Effects 8
Early Amendment Design 13
America’s First Constitution 13
Neither Amendment nor Constitution 14
The State Tradition in Constitutional Amendment 16
Defying Amendment Rules 18
Constitutional Moments and the Basic Structure Doctrine 19
The Constitution as an Incomplete Code 22
Legal Amendment or Illegitimate Violation? 24
The Content- Procedure Distinction in Amendment Review 27
The Road Ahead 30
PART ONE FORMS AND FUNCTIONS
1. Why Amendment Rules? 39
The Uses of Constitutional Amendment Rules 40
Formal 41
Functional 45
Symbolic 47
Authenticity in Amendment Design 49
Authoritarian Commandeering of Amendment Rules 50
Text and Reality 51
Amendment Values in Germany 52
Political Culture and Constitutional Commitment 58
2. The Boundaries of Constitutional Amendment 61
An Amendment in Name Alone 63
The Social State in Brazil 63
Provincial Secession in Canada 64
vi Contents
Senate Reform in Ireland and Italy 66
The War on Japan’s Pacifist Constitution 67
Amendment or Constitution? 68
The Conventional Theory of Constitutional Change 69
Four Propositions 71
Constitutional Destruction and Reconstruction 73
Amendment and Dismemberment 76
A Content- Based Approach 78
The Four Fundamental Features of Amendment 79
The Two Thirteenth Amendments 82
Three Types of Dismemberment 84
PART TWO FLEXIBILITY AND RIGIDITY
3. Measuring Amendment Difficulty 95
Studies of Amendment Difficulty 98
Ranking Constitutions 98
Constitutional Rigidity 100
More Art than Science? 101
The Missing Case of Canada 105
The Most Difficult Constitution to Amend? 105
Alternative Amendment Procedures 107
Cultures of Amendment 110
Amendment Culture as Acceleration 112
Amendment Culture as Redirection 115
Amendment Culture as Incapacitation 116
Temporal Variability in Amendment Difficulty 119
Amendment Failure in the United States 119
Amending Article V 121
The Progressive Era of Constitutional Amendment 123
Another Progressive Era? 125
Uncodified Changes to Formal Amendment Rules 126
Three Causes of a Global Phenomenon 127
Statutory Conditions on Codified Amendment Rules 128
Popular Expectations in Constitutional Amendment 131
Judicial Interpretation of Amendment Procedures 133
The Limits of Codification 136
4. The Three Varieties of Unamendability 139
Codified Unamendability 140
Reassurance 141
Reconciliation 143
Preservation 144
Transformation 146
Contents vii
Crisis Management 147
Settlement 148
Value Expression 148
Interpretive Unamendability 149
Continuity and Discontinuity 150
The Basic Structure Doctrine 151
Variations on the Basic Structure Doctrine 153
Conventions of Unamendability 156
Constructive Unamendability 158
The Equal Suffrage Clause 160
Constitutional Veneration 162
Omnibus Amendment Bills and Multi-P arty Incompatibility 165
Unamendability in Measuring Amendment Difficulty 169
PART THREE CREATION AND REFORM
5. The Architecture of Constitutional Amendment 175
Pathways and Possibilities 177
Single- Track and Multi-T rack Pathways 178
The Use of Amendment Pathways 182
Single- Subject Amendments 186
Codifying Procedures for Amendment and Dismemberment 188
Democracy and Unamendability 194
An Inherent Right 194
Constitution as an Action 195
A Democratic Requirement of Unamendability? 198
Alternatives to Codified Unamendability 201
Time and Change 202
Safe Harbors 203
Deliberation Requirements 204
Inter- Generational Ratification 205
Intra- Generational Ratification 207
Time and Brinkmanship 210
Time and Contemporaneity 213
Judicial Review of Constitutional Amendments 217
How a Court Becomes Supreme 218
Alternatives to Invalidation 222
Pre- Ratification Review in Canada 223
6. Finding Constitutional Amendments 229
Four Models of Codification 229
The Appendative Model 231
The Disaggregative Model 234
The Integrative Model 236
viii Contents
The Invisible Model 238
The Problem of Obsolescence 240
Time and Social Change 241
Reimagining the U.S. Constitution 242
The Appendative Model in Society 244
The Problem of Harmonization 246
The Canadian Hybrid Model of Codification 246
Reconciling Constitution Acts 248
When to Harmonize 249
The Problem of Incorporation 250
The Politics of Codification in Mexico 251
Confusion and Disorder in Codification 253
Constitutional Veneration and the Appearance of Finality 254
Fidelity and Authority 257
Conclusion— The Rules of Law 261
A Blueprint for Amendment Design 262
Foundations 263
Pathways 265
Specifications 265
Codification 267
The Democratic Values of Constitutional Amendment 268
Notes 273
Index 323
Acknowledgments
A few months before beginning my career at Boston College Law School,
I received an unexpected email from Karen Breda, a librarian at the univer-
sity who later became a good friend: “How can I help you in your research?,”
she asked. By the time I arrived on campus, Karen had compiled one dozen
binders of materials on constitutional amendment for me. Those readings
formed the foundation for many of my early publications on the subject.
I have been blessed by the support and encouragement of people like
Karen everywhere I have been. At Boston College, my faculty colleagues
welcomed me into the profession, helped me become a better scholar and
teacher, and saved me from myself on more than one occasion. I thank
in particular Bob Bloom, Kent Greenfield, Vlad Perju, Jim Repetti, Diane
Ring, my deans John Garvey and Vince Rougeau, and our provost David
Quigley.
I constructed the core of this book while at Yale University in the
2015– 16 academic year as the Canadian Bicentennial Visiting Associate
Professor of Political Science and Visiting Associate Professor of Law.
I thank Bruce Ackerman, David R. Cameron, and Menaka Guruswamy for
our many conversations and collaborations during my time in New Haven.
I later tested and refined the ideas in this book as a visiting professor at
the University of Toronto, the Externado University of Colombia, and the
Interdisciplinary Center Herzliya in Israel. This book has benefited immeas-
urably from discussions with colleagues at each of these great institutions.
And now at the University of Texas at Austin, I have found inspiration
in my colleagues in the Law School and the Department of Government—
colleagues who together amount to the best group of scholars anywhere
studying constitutionalism. I am grateful to Sandy Levinson for teaching
me so much about constitutional amendment in his writings and our
conversations, and to my dean Ward Farnsworth for making it possible for
me to devote significant time to this manuscript. I have been supported
at every turn, most notably by Trish Do, Sylvia Hendricks, and Jonathan
Pratter.
