– Kritika Vohra*
What is the most important part of a constitution? In the introductory chapter of his book ‘Constitutional Amendments: Making, Breaking, and Changing Constitutions’, Richard Albert provides an unlikely response: amendment procedures. The remainder of the book offers a compelling defense for this position and makes a case for placing the often-forgotten subject of constitutional amendment at the center of the modern study of constitutional change. It relies on a rich combination of comparative, doctrinal, historical, and theoretical perspectives to achieve two significant and interconnected objectives –to map the “intellectual universe” of constitutional amendment, and to provide a blueprint for drafting formal rules of constitutional change.
I. The “Intellectual Universe” of Constitutional Amendment
The book proceeds in three parts. The first part identifies different functions of amendment rules, namely, formal, functional and symbolic. It goes on to challenge the conventional procedural and textualist notions of constitutional change and concludes by advocating for a content-based approach to constitutional amendments – an approach that distinguishes between an amendment and a ‘dismemberment’. The second part of the book emphasizes the shortcomings of quantitative studies that compare the difficulty of constitutional amendment across countries and demonstrates why such studies are destined to fail. Building further on the complexities of amendment difficulty, it goes on to provide a typology of unamendability, identifying codified, interpretative and constructive unamendability as distinct varieties, each having unique concerns. The third and final part of the book makes theoretical and practical contributions to assist those tasked with building and improving the rules of constitutional change. Having surveyed a wide variety of amended rules and practices earlier in the book, the final part sets out different design choices based on current practices, and outlines various considerations that might have a bearing on the drafting of these rules.
II. Experiences Far and Wide
Albert’s work stands out for the remarkable variety of constitutional experiences it analyzes. In exploring important questions about the theory and practice of constitutional amendments, Albert makes a deliberate choice to draw on the experiences of dozens of constitutions in every region of the world, including countries in the east and west, and in the civil and common law traditions. For instance, the first chapter of the book features constitutions from twenty different jurisdictions, including not only Germany, South Africa and United States but also Chad, Kazakhstan and Kiribati. Similarly, the second chapter draws on constitutions from Belize, Brazil, Jamaica, Japan and New Zealand, among others. Furthermore, Albert’s exposition of the countries’ experiences most often goes beyond a discussion of the text of the relevant provisions and delves into social and political pathologies that shape these experiences. By expanding the scope of his scholarly endeavor beyond jurisdictions that typically find mention in mainstream comparative constitutional law literature, Albert makes his map of the “intellectual universe” of constitutional amendment remarkably inclusive and comprehensive. Further, the book engages with rules and practice of constitutional amendment spanning not just a few decades but over two centuries. From the earliest articulations of amendment rules in the Maryland state constitution and the original constitution of the United States in the 1770s, to a more recent example of a constitutional amendment in China in 2018, the lengthy timeframe covered in this book is a testament to the author’s depth of research.
III. Amendments and Dismemberments
Quite apart from its depth of research, the book makes a significant contribution by reframing the discussion on formal constitutional change, from procedural and textualist approaches to a content-based approach. Albert notes that as per conventional theory of constitutional change, all changes that are made using amendment rules are considered constitutional amendments. This mechanistic view cares only for compliance with the stipulated amendment procedure – changes that comply with the said procedure are seen as amendments. Similarly, a textualist view sees as amendments those changes that alter the text of the constitution. While these approaches may acknowledge that some amendments are more transformative than others, they go no further. This view, Albert argues, ignores the fact that many such ‘amendments’ are not amendments at all but are “self-conscious efforts to repudiate the characteristics of the constitution and destroy its foundations”. They go beyond the corrective, elaborative, reformative or restorative functions of an amendment and are better understood as ‘dismemberments’. As Albert puts it, constitutional dismemberments “do violence to the existing constitution, whether by remaking the constitution’s identity, repealing or reworking a fundamental right, or destroying and rebuilding a central structural pillar of the constitution.” He relies on the example of ‘the social state’ in Brazil and the potential secession of Quebec in the case of Canada to illustrate changes that more properly amount to or would amount to constitutional dismemberments.
At first, readers, especially those familiar with the basic structure doctrine, may question the novelty of Albert’s normative distinction between amendments and dismemberments. Despite these claims however, Albert’s contribution remains valuable for at least two reasons. First, his theory of constitutional dismemberment is not concerned with judicial review, even though it builds on the same normative concerns that underpin the basic structure doctrine. Contrary to the position of the basic structure doctrine that views certain essential features of the constitution as inviolable, Albert rejects unamendability for being inconsistent with democratic constitutionalism. In his view, no change to a constitution, whether an amendment or a dismemberment, should be prohibited – either in the text of the constitution or through any other means. His theory of dismemberment, thus, is better understood from the vantage point of designing ‘more perfect’ amendment rules rather than from the perspective of judicial checks and balances. Second, although the distinction between an amendment and a dismemberment is well-understood in certain countries, it remains on the fringes as far as theory on constitutional change is concerned. For instance, Albert acknowledges that the Swiss Constitution, the Costa Rican constitution and many state constitutions in the US formally distinguish between an amendment and a dismemberment (although not necessarily using the same terminology). Even so, this distinction is far from commonplace in the standard democratic design of the rules of constitutional change. By placing this distinction at the center of his book, Albert succeeds in mainstreaming that distinction as an essential idea that the modern study of constitutional change must engage with.
IV. The Ongoing Quest for Alternatives to Interpretative Unamendability
Albert considers in some depth the democratic difficulties around unamendability, and even acknowledges scholars who disagree with his view, mostly notably Yaniv Roznai, who defends interpretative unamendability on democratic grounds.[1] There remains, however, at least one area where the book leaves the reader wishing for more. While the book addresses a wide variety of considerations, it considers alternatives to interpretative unamendability only briefly. Albert provides two key alternatives, one building on the theory of democratic dialogue between courts and constitutional reformers, and the other based on pre-ratification review of constitutional amendments. The former, Albert notes in passing, would entail a court making an advisory declaration of an amendment being incompatible with the constitution, thus having no binding effect and placing the court in a conversation with constitutional reformers rather than above them. He explores the second alternative of pre-ratification review of constitutional amendments by tracing Canada’s successful experience with the approach and demonstrates why the approach is more compatible with democratic constitutionalism than the commonly defended route of interpretative unamendability.
While Albert’s engagement with these alternatives is especially valuable for countries with entrenched constitutions and amendment practices, it leaves some questions unanswered, thus creating avenues for further scholarly work on the subject of constitutional amendments. For instance, what factors should constitutional reformers and members of the judiciary consider while adopting the dialogic approach? How can the key actors ensure that the dialogue between constitutional reformers and the judiciary remains productive and effective? How might social, political and institutional realities of different countries affect the viability of this approach? The fact that the dialogic approach has not been used in the context of constitutional amendments thus far need not preclude scholarly attempts at answering these important questions, especially since, as Albert notes, this approach is a variation of the judicial approach to the UK Human Rights Act or the New Zealand Bill of Rights Act. Similarly, it is unclear how a variant of the pre-ratification review might take hold in constitutional systems that, unlike Canada, either do not provide for or prohibit courts from issuing advisory opinions. For instance, Article III of the US Constitution authorizes courts to exercise judicial authority over actual cases and controversies, and has been interpreted by the Supreme Court as prohibiting federal courts from issuing advisory opinions in hypothetical cases.[2] While pre-ratification review is not put forth as a universal approach suitable for all jurisdictions, concerns about its viability in many countries necessitates a broader discussion on the strength of this alternative and on how its learnings may be applied to jurisdictions that are less amiable to conferring advisory jurisdiction on courts.
V. Conclusion
The commonplace practice of constitutional borrowing and the near universal codification of rules of change within constitutions makes this book an indispensable resource for anyone interested in the rules of constitutional amendment.[3]The book does a commendable job of drawing on constitutional provisions and experiences from across the world to place formal amendment rules at the center of the modern study of constitutional change. Albert’s depth of research, his discussion of theoretical as well as practical concerns regarding formal rules of constitutional change, and his analytical clarity and accessible writing style is likely to benefit not only constitutional reformers, framers of new constitutions, and constitutional law scholars, but also lay persons interested in how constitutions change over time.
* Kritika is a graduate of Harvard Law School and WBNUJS, Kolkata. Her research focusses on issues of constitutional law and theory.
[1] Yaniv Roznai, Unconstitutional Constitutional Amendments: The Limits of Amendment Powers (Oxford University Press, 2017).
[2] Muskrat v. United States, 219 U.S. 346 (1911).
[3] Wiktor Osiatynski, Paradoxes of Constitutional Borrowing, International Journal of Constitutional Law, 1(2), 244-268.
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