Eugene D. Mazo

Several months ago, Richard Albert introduced me to one of his former students, a fellow named Dylan, who worked as a political operative in Massachusetts before enrolling in law school. Dylan and I talked on the phone a few times, mostly because I was thinking of running for Congress and Dylan knew a lot about the ins and outs of political campaigns. During one of these conversations, I asked Dylan about Albert’s class. Dylan took constitutional law with Albert. He learned a lot in the class, he told me, and then added a comment that struck me. Every weekend of the semester, Dylan said, Albert would jet off to some far-flung country to give a speech or host a conference. He would then return just in time to teach his regularly scheduled constitutional law class. “We called him the James Bond of comparative constitutional law,” Dylan told me, referring to Albert.

Well, James Bond has now written a monograph. And, like the other weapons in his arsenal, it is potent. It is a book that will be discussed in the field of comparative constitutional law for years to come. Albert’s book focuses on his specialty, the study of constitutional amendments. It powerfully argues that amendment rules shouldn’t be treated as a mere appendage to a constitution’s text, but rather as the most important part of a constitution. At 270 pages, Albert’s book isn’t long. And yet, it feels encyclopedic. It also brings a unique comparative perspective to its subject matter. Like the real James Bond, Albert moves seamlessly from one country to the next throughout his narrative. The book is action-packed, keeps the reader entertained, and never lets the reader forget the unique perspective that the author brings to his subject. It is, in short, a page-turner.

For Albert, a constitution and its amendment rules are like a “lock and key”—one can hardly work without the other. However, whereas other parts of constitutions, such as the provisions regarding executive-legislative relations and judicial review, have been written about extensively, the study of amendment rules has been pushed to the sidelines by scholars. Albert seeks to remedy this by bringing amendment rules front and center.

Albert begins his book by discussing the purposes of constitutional amendments. These include repairing the imperfections found in constitutions (the codified constitution of Saint Lucia, we learn, had a typographical mistake in it when it was ratified!), entrenching important constitutional provisions by not allowing them to be easily altered, and even heightening public awareness and promoting democratic norms. In short, amendment rules have several formal, functional, and symbolic purposes.

After outlining these purposes, Albert wrestles with the important question of what, exactly, constitutes a constitutional amendment. He rejects procedural and textual approaches, and instead settles on a content-based approach, for defining an amendment. He argues that no constitutional change should be considered an “amendment” unless it possesses the proper subject, authority, scope, and purpose. In making this argument, Albert contrasts an amendment with another form of constitutional change that he calls a “constitutional dismemberment.” A dismemberment alters a constitution’s essential features. I was surprised to learn that, according to Albert’s theory, the Thirteenth Amendment to the U.S. Constitution is a dismemberment. This is so because slavery was originally baked into the Constitution of 1787, and the Thirteenth Amendment did away with it, thus changing one of its essential features.

Many comparative studies of formal constitutional amendment rules have been devoting to assessing the comparative difficulty of amending different national constitutions. In his book, Albert takes issue with this literature. He argues that most of these studies are flawed because of their failure to take into account the non-textual sources of amendment difficulty. To give an example, some constitutions experience temporal variability in their amendability, meaning they may be easier to amend during one period of time than another, depending on factors outside the formal amendment rules. From this discussion, Albert takes his reader on an erudite tour of constitutional unamendability. He introduces the reader to various forms of it, including “codified unamendability” (when a constitution, by its own provisions, makes certain provisions unamendable), “interpretative unamendability” (when a court interprets certain provisions as being unamendable, such as with the “basic structure doctrine” in India), and “constructive unamendability” (when a provision is technically but not practically amendable, as with the Equal Suffrage Clause).

Albert’s greatest contributions come in the book’s last two chapters. Albert’s fifth chapter focuses on the various “amendment pathways” found in constitutions. He spells out the universe of options confronting a constitution-maker who may be designing a country’s constitutional amendment rules. Here, Albert raises two questions: First, how many amendment procedures might be available in a given constitution, including procedures both for an amendment’s initiation and ratification? Second, can these procedures be used to amend all or only some parts of a given constitution? Here the reader is introduced to the distinction between “single-track” and “multi-track” amendment procedures. Constitutions with “single-track” procedures allow only one path to be used to for amendment, while those with “multi-track” provisions allow multiple paths. Albert further distinguishes between amendment rules that are “comprehensive” (meaning all amendable parts of a constitution are amendable by all procedures), “restricted” (meaning each amendable part of a constitution can only be amended by a specifically designated procedure), and “exceptional” (this works similarly to comprehensive rules, except there is one constitutional procedure that is reserved especially for one kind of amendment). The theory here is rich and nuanced, and it certainly makes one think.

Albert’s fifth chapter also painstakingly examines the relationship between democracy and constitutional amendability. He argues that constitutional amendments are not just a feature of interest to constitutional designers. Rather, the right to amend a constitution is a fundamental right given to all citizens. The word “constitution,” Albert reminds us, is also a verb—and, in that sense, we might say that “a constitution is ever in constitution,” meaning that a constitution is never complete. Understanding a constitution in this way allows the people to remain in perpetual conversation with each other, knowing that the fundamental charter that governs them can always be changed. This idea leads Albert to explore the interesting relationship between time and amendments. including how amendment safe harbors work (when a constitution prohibits an amendment during a certain period), as well as how inter-generational ratification works (think of the Twenty-Seventh Amendment of the U.S. Constitution).

The sixth and final chapter of the book introduces a topic that I had never seen discussed before: Where do constitutions place their amendments? Do they record their amendments at the end of the document, as we do in the United States, or somewhere else? Here, again, Albert unveils a set of theories and empirical examples to help the reader. Countries that follow the “appendative model” place their amendments at the end of their codified constitutional texts. This is what happens in the United States, for example. Those that follow the “disaggregative model,” such as Israel, New Zealand, and the United Kingdom, disaggregate their amendments, meaning they are not collected in one text or one place. Countries that follow the “integrative model,” such as India, see amendments integrated within the text of the constitution. India’s constitution features footnotes and crossed-out text, as if it was amended using the “track changes” function in Word. Finally, the “invisible model” allows a constitution’s text to be crossed out and replaced in its entirely by the text that amends it. In Ireland, for example, someone sitting down to read the constitution will never know it was amended, unless that person compares two Irish constitutions from different years. The Irish constitution hides its amendments.

Albert argues powerfully and persuasively that amendment rules are serious business, and that the way these rules work is important. He makes this point again and again, each time by taking the reader on a tour of countless constitutions from around the world. The book’s range is simply breathtaking. While the author’s own mental maps of the Canadian and American constitutional experiences predominate, the reader nonetheless also finds himself being whisked away to Albania, Cape Verde, Costa Rica, Fiji, France, Georgia, Germany, India, Ireland, Japan, Nicaragua, Saint Lucia (as mentioned), South Africa, Togo, Turkey, and many other countries. I am not exaggerating when I say that Albert’s monograph is probably the most important book to be published in comparative constitutional law in the last year—maybe even in last three or four years.

Which brings me to conclude. Albert’s book is a guide to constitutional amendments like no other. But it is also an incomplete guide. In many ways, that is by design. He means for the book to be a starting point and an invitation to engage in a longer conversation. The book has almost nothing to say, for example, about how constitutional amendments are written, and even less to say about who should write them. Nor does it delve into explaining what kinds of particular amendment rules any given country should adopt. The book is not ideologically charged, and nor is it political. On the other hand, it does provide the reader with many baskets of useful information and helpful distinctions, even if it does so in a way that is more descriptive than normative. As such, it leaves many questions unanswered. But I didn’t see this as an problem at all. James Bond, after all, was played by many different actors over the years. And each came up with different nifty gadgets to use on his villains. What kind of James Bond will Richard Albert turn out to be? Is he more like Sean Connery or Roger Moore? Is he more like Pierce Brosnan or the newer Daniel Craig? We might have to wait for the sequel to Constitutional Amendments to find out.

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.