Amending constitutional amendment rules

Abstract

No part of a constitution is more important than the rules that govern its amendment. Given the important functions served by formal constitutional amendment rules, we might expect constitutional designers to entrench them against ordinary amendment, for instance by requiring a higher-than-usual quantum of agreement for their amendment or by making them altogether unamendable. Yet relatively few constitutional democracies set a higher threshold for formally amending formal amendment rules. In this article, I demonstrate that existing written and unwritten limits to formally amending formal amendment rules are unsatisfactory, and I offer modest textual entrenchment strategies to insulate formal amendment rules against ordinary formal amendment in constitutional democracies where the constitutional text exerts an appreciable constraint on political actors. I draw from historical, theoretical and comparative perspectives to suggest that two principles—intertemporality and relativity—should guide constitutional designers in designing formal amendment rules in constitutional democracies.