Formal and Informal Constitutional Amendment

Abstract

The constitutional search for greater justice is the animating principle that guides or should guide constitutional amendment and constitutional change whenever and wherever it occurs. Almost all states and governments formally declare their constitutional commitment to justice, liberty, and the rule of law. Yet reports on constitutional amendment from nations throughout the world remind us that we live at a moment of constitutional peril. The general trend of constitutional government in many states has been towards greater corruption, violence, and arbitrary action. This illustrates the dual and parallel importance of constitutional principles and constitutional structures in securing the rule of law. Constitutional principles animate the constitutional structures that apply our constitutional principles in practice. Constitutional amendment and constitutional change can be formal, informal, cultural, and even at times, illegal. Which techniques are appropriate will vary according to the circumstances. The failure of widely shared and well-developed formal or structural constitutional arrangements to prevent the decline of the rule of law in the early twenty-first century confirms the important role that informal and cultural constitutional change have always played in the development of constitutional justice. While constitutions can declare the importance of liberty, justice, and the public welfare, and establish constitutional checks and balances to protect them, they cannot guarantee good faith. That depends on the lawyers, judges, and scholars who make the constitution real.