Quasi-Constitutional Amendments

The difficulty of formal amendment in constitutional democracies has given rise to an increasingly common phenomenon: quasi-constitutional amendments. These are sub-constitutional changes that do not possess the same legal status as a constitutional amendment, that are formally susceptible to statutory repeal or revision, but that may achieve constitutional status over time as a result of their subject-matter. The impetus for a quasi-constitutional amendment is an intent to circumvent onerous rules of formal amendment in order to alter the operation of a set of existing norms in the constitution. Where constitutional actors determine, correctly or not, that the current political landscape would frustrate their plans for a constitutional amendment to entrench new policy preferences, they resort instead to sub-constitutional means whose successful execution requires less or perhaps even no cross-party or inter-institutional coordination. This strategy sometimes results in significant changes that have the functional effect though not the formal result of a constitutional amendment. In this Chapter, I illustrate this phenomenon with reference to the Constitution of Canada, though I stress at the outset that we can observe this phenomenon elsewhere in the world.

This Review Essay forms part of a special issue of the Manitoba Law Journal (forthcoming) dedicated to Richard Albert, Constitutional Amendments: Making, Breaking, and Changing Constitutions. Years in the making, Constitutional Amendments explains how amendment rules define a constitution’s integrity, ensuring its longevity by allowing and even inviting formal changes to its text. Albert’s work is prodigious and monumental, connecting abstract issues of textual design to the follies of constitutional amendment over diverse variables of time and place. This Review focuses selectively on Constitutional Amendments and its implications for Canadian amendment constitutionalism, exploring Albert’s view that amendment rules expose a constitution’s “deepest vulnerabilities” and reveal its “greatest strengths”. Specifically, the Review draws on Albert’s work to suggest a simple but sharp insight linking the 1867 Constitutions’s failure to provide textual amendment rules to the steadfast unamendability of the Canadian Constitution today.

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.

Drawing on experiences in relation to successful and attempted amendments to term limit provisions, the chapter argues that constitutional provisions on amendment matter and play an important role in structuring political power. The chapter explores patterns of constitutional amendment rules in the region, showing that, as compared to other regions, formal rules in Africa are relatively flexible. It also shows that constitutional change is somewhat frequent. At the same time, the region features an unusually dense concentration of rules that make formal constitutional amendment unavailable. The combination of "unamendable" provisions with relatively easy "normal" rules of amendment provides an example of a "tiered constitutional design," in which levels of entrenchment vary with the level of importance of the provision. Africa's experience with constitutional design, we conclude, shows the promise, and to some extent the peril, of such rules, but confirms the normative desirability of tiering as an approach to democratic politics.

Constitutional Amendments: Making, Breaking, and Changing Constitutions is both a roadmap for navigating the intellectual universe of constitutional amendment and a blueprint for building and improving the rules of constitutional change. Drawing from dozens of constitutions in every region of the world, this book blends theory with practice to answer two all-important questions: What is an amendment and how should constitutional designers structure the procedures of constitutional change? The first matters now more than ever. Reformers are exploiting the rules of constitutional amendment, 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. The second question is central to the performance and endurance of constitutions. Constitutional designers today 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. Constitutional Amendments: Making, Breaking, and Changing Constitutions shows that no part of a constitution is more important than the procedures we use change it. Amendment rules open a window into the soul of a constitution, exposing its deepest vulnerabilities and revealing its greatest strengths. The codification of amendment rules often at the end of the text proves that last is not always least.

Constitutional amendment rules were once very simple in their design. A constitution codified a one-size-fits-all procedure for amendments to any part of the constitution, and that was it. Today, amendment rules are considerably more complex in their design and in the possibilities they offer constitutional designers for structuring their rules of constitutional change. This chapter examines the architecture of constitutional amendment, specifically the options available to constitutional designers to build their own rules of change. This chapter also weighs the strengths and weaknesses of these options and offers some guidance on when one choice may be better than another. This chapter compares single-track and multi-track pathways in constitutional amendment, single-subject and omnibus amendment bills, and procedures for amendment and dismemberment. This chapter also explains 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. This chapter moreover examines the important relationship between time and change, namely how constitutional designers can use and manipulate time in their design of amendment rules. Finally, this chapter explores 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. This chapter considers constitutions from around the globe.

This research was conducted with the aim of finding out: 1) Procedures and practices for changing the constitution in Indonesia 2) Constitutional amendments in a democratic rule of law state in Indonesia. The type of research used in this research is normative legal research using a statutory approach and a conceptual approach. The types and sources of legal materials in this research are primary and secondary legal materials. The results of this research show that: 1) The procedures and practices for changing the constitution in Indonesia are regulated in several regulations, including: the 1945 Constitution to the RIS Constitution, the RIS Constitution to the 1950 Constitution, the 1950 UUDS to the 1945 Constitution and the 1945 Constitution (Decree) to the 1945 Constitution (Amendment). 2) Constitutional amendments in a democratic legal state in Indonesia, namely: First, changes to the constitution must be in accordance with procedures that have been determined by themselves, because this is what is in accordance with changes to the constitution according to law (vervassunganderung). Second, institutions that make changes must receive legitimacy from the people. Third, actions or changes to the constitution must involve the community.

This is the United States report submitted for the session on Formal and Informal Constitutional Amendment at the Twentieth Congress of the International Academy of Comparative Law to be held in Fukuoka, Japan in July, 2018. The report reviews Article V of the United States Constitution setting out the rules for constitutional amendment and it provides a brief chronology of the twenty-eight amendments adopted to date. It notes a number of potential problems of interpretation associated with Article V. The report considers the widely held assumption that the United States Constitution is one of the hardest, if not the hardest. constitution in the world to change. It goes on to discuss possible limits on the substance of constitutional amendments. Some of these are set out in Article V but, as some other jurisdictions have recognized, there may be further, implicit restrictions based on the distinction between constitutional amendment and constitutional replacement. Many issues associated with constitutional amendment remain unresolved as a result of the Supreme Court’s reluctance to pronounce on the validity of amendments. Finally, the report compares the Article V process to the very significant constitutional change that has been accomplished through the constitutional interpretation of the United States Supreme Court. It concludes that jurisdictions like the United States where the constitution is treated with undisguised reverence, face a dilemma. Limiting constitutional revision to the formal process will eventually result in a constitution that is radically unsuitable for a modern society. But allowing irregular modification by judges sacrifices the key values of security, stability and predictability, the reasons we have a written constitution in the first place.

The current scholarly focus on informal constitutional amendment has obscured the continuing relevance of formal amendment rules. In this article, I return our attention to formal amendment in order to show that formal amendment rules—not formal amendments but formal amendment rules themselves—perform an underappreciated function: to express constitutional values. Drawing from national constitutions, in particular the Canadian, South African, German, and United States constitutions, I illustrate how constitutional designers may deploy formal amendment rules to create a formal constitutional hierarchy that reflects special political commitments. That formal amendment rules may express constitutional values is both a clarifying and a complicating contribution to their study. This thesis clarifies the study of formal amendment rules by showing that such rules may serve a function that scholars have yet to attribute to them; yet it complicates this study by indicating that the constitutional text alone cannot prove whether the constitutional values expressed in formal amendment rules represent authentic or inauthentic political commitments.

The current scholarly focus on informal constitutional amendment has obscured the continuing relevance of formal amendment rules. In this article, I return our attention to formal amendment in order to show that formal amendment rules—not formal amendments but formal amendment rules themselves—perform an underappreciated function: to express constitutional values. Drawing from national constitutions, in particular the Canadian, South African, German, and United States constitutions, I illustrate how constitutional designers may deploy formal amendment rules to create a formal constitutional hierarchy that reflects special political commitments. That formal amendment rules may express constitutional values is both a clarifying and a complicating contribution to their study. This thesis clarifies the study of formal amendment rules by showing that such rules may serve a function that scholars have yet to attribute to them; yet it complicates this study by indicating that the constitutional text alone cannot prove whether the constitutional values expressed in formal amendment rules represent authentic or inauthentic political commitments.

As Rosalind Dixon and David Landau observe in their article, Transnational Constitutionalism and a Limited Doctrine of Unconstitutional Amendment (International Journal of Constitutional Law, vol.13, no. 3, pp. 606-638, 2015) the breakdown of constitutional democracy is a central fear of contemporary politics. On their account abusive constitutional amendments are central techniques for democratic backsliding, and judicial review of such amendments is justified on the basis that it safeguards democracy from itself. But on their account, the assertion of such a judicial power carries a potential danger -- that courts could overreach and second-guess constitutional amendments which do not pose an existential threat to constitutional democracy. I engage Dixon and Landau on two points. First, I suggest that comparative constitutional law should premise its analysis of the problem of democratic backsliding not on the problem of unconstitutional constitutional amendments, but rather on a broader inventory of the various legal tools used by autocrats that enable democratic backsliding, which encompasses the abuse of the power of constitutional amendment but extends well beyond it. Secondary, the more likely scenario is not that courts will overreach, but rather than they will fail to call democratic backsliding by its name, which raises important strategic questions for courts on whether to embrace the power to declare constitutional amendments unconstitutional and on what basis, or to calibrate the combination of justification and judicial control differently.

This essay discusses the use of culture in comparative constitutional amendment theory. In particular it assesses the use of culture in normative-culturalist as opposed to empirical approaches of constitutional amendment. It discusses the notion of 'amendment culture' put forth by Ginsburg and Melton, delineating how this represents a shift compared to their earlier work (Elkins, Ginsburg and Melton). Moreover, it probes their idea of a measurable amendment culture in light of the recent work by L. Epstein and A.D. Martin on empirical methodology on one hand, and as regards our own approach to constitutional change through amendment models on the other. This essay examines these approaches to explore their possible contribution to the design of formal amendment rules.

There are presently too few resources to guide constitutional designers in building the rules of constitutional amendment. This chapter offers a roadmap for designing constitutional amendment rules. As is true of building an edifice, constructing the rules of constitutional change requires careful thought about design and operation. This chapter explains that amendment rules are organized around four sets of fundamental choices requiring designers to set the foundations of the polity, to choose among pathways to initiate, propose and ratify an amendment, to select specifications that will put the foundations and pathways into operation, and finally to determine how and where amendments will be recorded. This chapter also explains 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. This chapter considers constitutions from Austria, Costa Rica, Great Britain, India, Ireland, Spain, Switzerland, and the United States.

To most lawyers and judges, constitutional amendment rules are nothing more than the technical guidelines for changing a constitution’s text. But amendment rules contain a great deal of substance that can be relevant to deciding myriad constitutional issues. Indeed, judges have explicitly drawn on amendment rules when deciding issues as far afield as immigration, criminal procedure, free speech, and education policy. The Supreme Court, for example, has reasoned that, because Article V of the U.S. Constitution places no substantive limitations on formal amendment, the First Amendment must protect even the most revolutionary political viewpoints. At the state level, courts have cited flexible amendment rules in state constitutions to support judicial restraint. Although largely unnoticed by scholars, amendment rules may be creeping into other areas of constitutional law. This Article provides the first systematic investigation and assessment of “amendment creep”—the phenomenon where judges explicitly draw on amendment rules to interpret constitutional provisions unrelated to formal amendment. The Article concludes that federal and state amendment rules contain constitutional substance that can assist judges and lawyers in resolving many diverse constitutional disputes. Based on an extensive review of relevant Supreme Court and state high court opinions, the Article constructs a typology of amendment-based arguments. The Article concludes that amendment creep is an extension of a familiar form of constitutional reasoning known as structuralism, and that it may have several normative benefits for constitutional adjudication—such as promoting overall constitutional coherence and ensuring that judges give appropriate consideration to the democratic values that amendment rules embed in the constitutional framework.

Notwithstanding recent interest in the study of constitutional amendment rules, there is very limited scholarship investigating the structure of formal amendment framework and little doctrinal debate on the role of upper houses, as sub-national units’ representatives, played in national amendment process and their capacity to strengthen the rigidity of constitutions. From an institutional framework perspective, this paper emphasizes the rules according to which the upper houses take part in constitutional revision processes, critically assessing the advantages and disadvantaged as well as the reasons of inclusion in these procedures. In this regard, firstly, it presents the theoretical rationales for their inclusion in the constitutional amendment process; secondly, it examines the amendment rules and identifies those mechanisms which gradually structure the constitutional rigidity. The analysis of amendment rules in different constitutions will allow for some remarks on the EU procedure of Treaty revision which encloses elements of rigidity. Although the EU is not a State and the Lisbon Treaty is not a Constitution, the comparison with the constitutional revision procedures of certain Member States, especially those with a decentralized structure, consents to analyze whether the mechanism of including national parliaments aggravates the Treaty amendment processes and to assess the impact on the quasi-constitutional configuration of the EU which deserves to be further developed in the perspective of the configuration of national legislatures as ‘territorial parliaments’ and their more incisive participation in the process of ‘formal European constitutional change’.