Institutional Design and the Politics of Constitutional Modification: Understanding Amendment Failure in the United States and Canada

Abstract

This article examines the recent failure of formal constitutional amendments in the United States and Canada by closely analyzing the institutional environment in which constitutional modification takes place. I focus first on the instrumental objectives of constitutional reform to develop an institutional design model of constitutional modification and identify the structural factors that affect the level of controversy generated by proposed amendments. I then revisit the failed ratification of the Equal Rights Amendment to demonstrate more explicitly how these institutional factors affected the amendment's fate. Finally, I extend the analysis by undertaking a comparative case study of the recent politics of constitutional modification in Canada. In particular, I focus on the failure of comprehensive constitutional change between 1987 and 1992. I argue that the same institutional design model, which focuses on institutional rigidity, interpretive flexibility, and litigation potential, enhances our ability to understand both the U.S. and Canadian cases of amendment failure.