Balkinization: Amendments in Non-Democratic Constitutions

Amendments in Non-Democratic Constitutions

Guest Blogger

For the Symposium on Richard Albert, Constitutional Amendments: Making, Breaking, and Changing Constitutions (Oxford University Press, 2019).

Eugene D. Mazo

Chapter 6 of Richard Albert’s book, “Finding Constitutional Amendments,” makes a truly unique contribution to our knowledge. How and where, Albert asks, will a constitution indicate that it has been amended? This question involves more than mere aesthetics. Rather, for Albert, where a constitution displays its amendments constitutes an important decision about “how and whether a people chooses to remember its past.” Chapter 6 was inspired by Akhil Amar’s “Architexture,” an essay in which Amar asks his reader to "examine the Constitution’s text as an architect might.” Doing so allows one to “notice key features of the document—its size and shape, its style and layout, its exterior facades and interior motifs—whose significance is lost on most lawyers and judges today.” Examining the U.S. Constitution in this way, Amar finds the method by which Americans decided to amend their constitution’s text to be somewhat striking. Rather than “directly rewriting the original 1787 text,” Amar explains, “Americans have chosen instead to add new text to the end of the document in chronological order,” so that each new amendment “builds out from its predecessor, beginning with Article VII and stretching toward the horizon.”

Albert refers to this American tradition as the appendative model of amendment. It calls for a constitution’s amendments to be added sequentially at the end of the text, while keeping the document’s original language unchanged. In this way, a constitution’s existing words remain untouched, even if their meaning may be changed by a given amendment. This is only one way that amendment architecture might work, however. A rather different choice is made when an amendment in incorporated directly into the original text, through what Albert calls the integrative model of amendment. Under this model, the original text is altered to reflect an amendment’s new content. In the Indian constitution, an amendment changes the original text, and it is always accompanied by various notations. New text appears in brackets, while old test is reproduced in a footnote below. The integrative model distinctively tells a reader of a constitution how and when that constitution’s original text has been changed. A person reading the Indian constitution, for instance, can easily decipher new text and distinguish it from previous text. Yet another architectural choice is found in the disaggregative model, which appears in uncodified constitutions. The United Kingdom, New Zealand, and Israel disperse their amendments throughout their many laws and principles of constitutional significance. These amendments are harder to discover, precisely because they cannot be found in a single text. But they are surely easier to discover than amendments enacted under the invisible model. Here, a single constitutional text is presented free of any additions or subtractions. Countries that employ this model, such as Ireland, tend to add, remove, and change constitutional text without ever altering the reader as to what part of their constitution has been amended or changed. The only way for a reader to figure out if a textual change has been made to the Irish constitution is to compare two versions of it, side by side, from different years.

Albert’s book provides us with a learned excursion into the world of constitutional amendments—including a discussion of amendment architecture that is unlike anything else in the literature. His book is a welcome gift to scholars not only because of the many novel theoretical insights and useful distinctions it introduces, but also because it leaves the reader with countless new ideas for his own research. That said, I do want to highlight at least one way in which the book remains incomplete. Albert’s theoretical narrative is strongest when it focuses on democratic constitutionalism. As Albert tells us toward the end of his book, “A constitutional amendment is an event of high moment in a constitutional state.” He goes on to explain how the legitimacy of an amendment “derives from the direct or mediated approval of the people to change the meaning of their constitution.” For Albert, in other words, an amendment is more often than not a cause for celebration. Of course, we know that cannot be true in all cases. Just like they hold elections. non-democratic countries use constitutional amendments too. But amendments in these countries, like their regularly scheduled elections, are usually not a cause for celebration. To illustrate the point, let me focus briefly on how the amendment process has been used in Russia.

The Soviet Union had several constitutions. One was adopted toward the end of Lenin’s life in 1924, another under Stalin in 1936, and a third under Brezhnev in 1977. Article 6 of the Constitution of 1977 infamously stated that the Communist Party was the “leading and guiding force in Soviet society and the nucleus of its political system.” Even that description did not go far enough to explain the dominant role played by the party in the political life of the state. When Gorbachev became general secretary of the party in 1985, he sought to carry out reforms, but he did not, initially, seek to amend the country’s constitution to do so. Indeed, in 1987, on the date of its tenth anniversary, the Constitution of 1977 had been amended only once. Eventually, Gorbachev understood that he would need to revitalize the Soviet Union’s political institutions and to downgrade the official role of the Communist Party at the same time, and to do that he resorted to constitutional amendments. Under Article 174 of the Constitution of 1977, these were easy enough to adopt. They required only a two-thirds majority vote of each chamber of the Supreme Soviet. This made the legislature akin to what one scholar termed “a continuing constitutional convention.” By 1990, one-third of the articles of the Constitution of 1977 would be totally rewritten.

Soviet constitutional amendments, according Albert’s theory, were integrative. Perhaps even more accurately, it would be fair to describe them were insertive. Chapter 15 of the Constitution of 1977 concerned the powers of parliament. In 1988, this chapter was revised to create a brand-new parliament, the Congress of People’s Deputies. Chapter 16 outlined the powers and duties of the executive branch of government, including of the Council of Ministers. In March 1990, Gorbachev decided to create a brand-new presidency for himself, and to do that his constitutional advisors superimposed this institution over the country’s existing constitutional architecture. This was done by writing a new Chapter 15-1 on the presidency and it powers and inserting it, literally, between Chapters 15 and 16.

The Soviet Union’s successor state, the Russian Federation, adopted a new constitution in December of 1993. After many fitful starts at constitution-making, this constitution was imposed on Russia’s parliament by Boris Yeltsin. Russia’s 1993 consists of nine chapters. The provisions of Article 81(3), which was found in Chapter 4, allowed no person to hold the be president for more than two terms in a row. Yeltsin was president of Russia from 1991 to 1999. Vladimir Putin was then elected president in 2000 and re-elected in 2004. In 2008, Putin, constitutionally at least, had no way to stay in power, so he urged his prime minister, Dmitry Medvedev, to run for president, while Putin became Medvedev’s prime minister. This arrangement lasted from 2008 to 2012, during Medvedev’s entire presidential term.

The amendment rules for Russia’s constitution are outlined in its Chapter 9. These amendment rules are “multi-tracked,” to borrow Albert’s designation, meaning that there this is more than one procedure for amending Russia’s constitution. They are also “restricted,” to borrow another one of Albert’s term, meaning that each amendable section of the constitution can be changed by only one specific amendment procedure. Amending Chapter 1, Chapter 2, and Chapter 9 itself requires an extraordinary procedure. To amend these chapters, a three-fifths vote of each house of the legislature, the State Duma and the Federation Council, must be obtained, after which a special federal law must be passed to form a Constitutional Assembly. This Constitutional Assembly can then propose amendments to the constitution, but they must be ratified in a national referendum. To be valid, the amendments put to this referendum have to receive more than 50% of the vote, with more than 50% of the electorate participating in the referendum.

Russia’s constitution provides for a different method of amending its other six chapters. To amend Chapters 3-8, a vote of two-thirds of the State Duma and three-fourths of the Federation Council is needed, plus ratification by two-third of the legislatures of Russia’s federal subjects (of which there are currently 85). This, too, is a high hurdle. For the first fifteen years of its existence, no amendment to the Russian constitution was made, and, as Jane Henderson explains in her book on the Russia constitution, “many commentators expressed the view that the Constitution was virtually immutable.”

Or rather, it might have been immutable, if Russia was a democracy. But in 2007, a Kremlin-backed political party managed to win a super-majority of seats in the legislature. Meanwhile, regional governors had over time become beholden to the centralized power structure in Moscow. Perhaps that is why, with unprecedented speed, national and regional legislatures gave their assent to a bill proposed in 2008 by Dmitry Medvedev to amend the Russian constitution in a way that would change the length of the president’s term from four to six years. In 2012, Putin, somewhat controversially, ran for the presidency once more, and his term was now set to end in 2018. If, in doing so, Putin violated the spirit of the constitution’s term limits, he certainly did not violate it text, at least not according to Valery Zorkin, the longtime chief judge of Russia’s Constitutional Court and a staunch Putin ally. In 2018, Putin was elected once more, for a term that was now set to end in 2024.

The longevity of Putin’s autocratic rule, of course, comes with its own instability, for what Russia lacks is a predictable mechanism of presidential succession. This is why all eyes began focusing on 2024. Before the betting game got ahead of itself, this past March, Russia’s parliament introduced another constitutional amendment bill, this one meant to extend Putin’s term once again. William Partlett has calls this amendment the “zeroing amendment,” because rather than remove presidential term limits entirely, it simply “zeros out” the number of terms that any current or prior president has served. In other words, by its own terms, the two-term limit does not apply to any person who has occupied the presidency at the time this new amendment enters into force. The zeroing amendment, as Partlett explains, only “applies to the two individuals who currently hold or have held the office of Russian President: Dmitry Medvedev and Vladimir Putin.” In effect, it will allow Putin to hold the presidency until 2036, for six terms in total, and for 32 out of 36 years. A host of other constitutional amendments were proposed in March, too. To pass them all, Putin scheduled a constitutional referendum to take place nationwide on April 22, just like was used to adopt the Constitution of 1993. But Covid-19 interfered with his plans.

Are constitutional amendments worth studying in a country like Russia? For Albert, hopefully, the answer is yes. Of course, Albert is a sophisticated enough scholar to recognize the farce behind constitutional amendments in Russia. “Democratic commitments on parchment have been known to conceal undemocratic practices in reality,” he concedes at one point in his book. He also admits that “formal amendment rules are … susceptible to authoritarian commandeering,” and he briefly cites the example of Russia as place where “authoritarian regimes may express inauthentic values while securing for themselves the goodwill that may come from their public association with democratic ideals.”

Russia’s constitution has often been criticized for giving its president widespread, sweeping powers. Now, through constitutional amendments, the presidency of the person who wields those powers will be extended. Russia’s 2020 constitutional amendments, when they pass, certainly constitute what Albert calls a “constitutional dismemberment,” but it would be a very different type of dismemberment from the other examples of “soft dismemberment” (my phrase, not Albert’s) that he refers to in his book, from the United State to New Zealand to Jamaica. Albert’s theory of dismemberment, he tells us, “is not rooted in a normative understanding of the constitution.” What matters instead, he tells us, “is the present constitutional settlement and how changes are made to it.” For scholars of democratic constitutionalism, that may be well and good. But for scholars who study non-democratic regimes, putting dismemberments in democracies and autocracies on the same page is nothing short of alarming. How these two types of dismemberments should be distinguished is something that Albert’s otherwise excellent book does not resolve.

Eugene D. Mazo is Visiting Associate Professor of Law at Rutgers Law School. You can reach him by email at eugene.mazo@law.rutgers.edu.

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