Richard Albert v The Venice Commission on Constitutional Amendments and the Rule of Law: A Systematic and Critical Comparison

Abstract

Richard Albert’s recent first monograph, Constitutional Amendments: Making, Breaking, and Changing Constitutions, is a major contribution to the study of the topic. It presents itself as a sort of summa amendmenta, whose erudition has its reader travel through space and time. It stands apart, not only by its historical and comparative scope, but also by its attempt at combining a legal approach to constitutional amendment with the currently prevailing more political study of constitutional change. More precisely, this legal approach is not merely positivistic and descriptive, but also normative, based on the value of legality or the rule of law. Albert briefly addresses the Venice Commission’s 2010 Report on Constitutional Amendment, but his critical take on it remains unclear and seems to stand at odds with other, and even more fundamental claims he makes. This ambivalence may reveal inherent and overlapping tensions between description and politics and between democracy and the rule of law, which permeate his book. Consequently, an in-depth critical comparison between Albert’s book and the Commission’s report is warranted, if not required. Both make recommendations or, in other words, propose a method for the design of formal rules of constitutional “amendment” or change. Moreover, both necessarily base their recommendations on some form of methodology, in the sense of a theory underlying the methods they respectively advance. It is these methodologies and methods of constitutional change rules design that this paper compares in turn, after a short backgrounder on their respective authors.