Balkinization: Constitutional Amendments from Design to Culture

Constitutional Amendments from Design to Culture

Guest Blogger

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

Erin F. Delaney

At its core, Richard Albert’s sweeping new book, Constitutional Amendments: Making, Breaking, and Changing Constitutions, seeks to tame what he terms a foundational paradox in the field of constitutional change: that the amendment power can be both fundamental to the survival of a constitutional order and the source of its destruction. Wrestling with this conundrum requires new tools: new terms for distinguishing among different types of constitutional alteration, including the concept of constitutional dismemberment wrought by an amendment with destructive power (Ch. 2); a richer analysis of the textual and societal inputs that make constitutional amendment difficult (Chs. 3 & 4); and a better sense of the range of options for initiating, ratifying, and instituting amendments, including both procedural and substantive constraints (Chs. 5 & 6). Through these efforts, Albert wishes to provide “a blueprint for building and improving the rules of constitutional change” (p. 4), to prevent the exploitation of constitutional amendment rules. Or, in other words, to ensure that the amendment power is used to foster rather than to destroy the constitutional order in which it is embedded.

In so doing, Albert reclaims the place of formal amendment at the center of a field which has been long focused on informal amendment (whether through judicial interpretation, or executive or legislative action). And his interest in formal amendment rules is not merely a scholarly choice, it is a normative commitment. He highlights the values of formal rules (Ch. 2) and argues that, notwithstanding some benefits to informality, “circumventing the codified rules of change . . . degrades the constitution and undermines the rule of law” (p. 270). In such a context, it is of paramount importance to get the rules right.

Constitutional Amendments is an ambitious project that identifies a central challenge within constitutional design, articulates its normative importance, and outlines new approaches to resolving it—and it hardly seems fair to ask the author for more. But Albert recognizes his book will open new avenues of research and invites scholars to join him in further inquiry (p. 36). In that spirit, I would like to use this post to highlight some as yet unanswered questions his book has generated.

Formal amendment rules operate in a political context; they must be resorted to, in order to gain their democracy-enhancing virtues (including publicity, predictability, transparency, civic engagement, and legitimacy). Albert understands this connection: he mentions that it often is by navigating the process itself that amendments gain their sociological legitimacy. That said, the relationship between rules and their political context is multifaceted and worth more exploration.

In Chapters 3 and 4, Albert directs his firepower on quantitative measurements for determining the comparative rigidity of the world’s constitutions, challenging the rankings of amendment difficulty. One of his arguments is that these studies fail to account for the complexity of amendment “culture”—what Tom Ginsburg and James Melton define as “‘the set of shared attitudes about the desirability of amendment, independent of the substantive issue under consideration and the degree of pressure for change’” (p. 110). The Ginsburg/Melton approach uses the rate of constitutional change (via amendment) as a proxy for a jurisdiction’s amendment culture. Albert critiques this choice and outlines three different types of amendment cultures (or the political and cultural forces relating to constitutional change) that have distinguishable effects on amendment difficulty. Amendment culture might work to foster or “accelerate” constitutional change through formal amendments, or, conversely, it might pair with codified rules to “incapacitate” change, making formal amendments virtually impossible. A third possibility is a culture that “redirects” change into informal, rather than formal, channels.

Albert is undoubtedly right that accounting for amendment culture is a complex task, as the variability in the amendment culture in the United States can attest. (A constitution that seems impossible to amend at the moment saw four amendments between 1909 and 1919, and four between 1960 and 1971, with a fifth—the Equal Rights Amendment—proposed in 1972.) But his own analysis leaves underexplored the connection between amendment culture and the amendment rules themselves. If getting the rules right is of critical import—for protecting the constitutional order and the rule of law—then it is relevant to think about how those rules themselves might create the political context in which they operate. What is the interaction between design and culture?

Albert hints at the existence of a link. In Chapter Six, for example, he discusses some of the more fine-grained elements of amendment design, such as how and where a constitution should indicate that it has been amended. In the United States, the First Congress debated whether to append successful amendments or to integrate their content into the original text. Roger Sherman argued that the original text should be retained as enacted, as altering it raised a question of authority: “‘the constitution is the act of the people . . . [b]ut the amendments will be the act of the State Governments” (p. 232). In Albert’s words, “did the first Congress and the ratifying states even have the right to tinker with the original text” (p. 231)? How might a culture of amendment be expected to develop in a jurisdiction where the original text is treated as sacrosanct both through the rhetoric of democratic authorization and by codification rules? Is it a culture of incapacitation? (Aziz Huq has argued that Article V created a redirectional (in Albert’s terms) amendment culture in the early Republic, to foster investments in subconstitutional institutions, defer conflict on divisive issues, and maintain the constitutional order.)

In their book, The DNA of Constitutional Justice in Latin America, Dan Brinks and Abby Blass demonstrate that a constitutional court’s formal institutional design can indicate the kind of political influence it was intended to exercise. Their claim is that—notwithstanding nurture’s considerable importance—nature nevertheless may have impact. Design decisions made during constitutional drafting can work to structure future politics and may have been intended to do so. Brinks and Blass complicate existing models of constitutional design by recognizing that in addition to the originating coalition (those whose agreement is necessary to produce the constitution) and the ruling coalition (those who make decisions in ordinary politics), there can be a distinct third group—in their model, a coalition of actors whose consent is necessary to exercise control over constitutional justice, including over the court. Discovering how and why this third group is given control by the originating coalition sheds light on the expected role of the court as a political actor within the constitutional order.

Exploring a system’s “constitutional amendment coalition” in light of the political complexities of constitutional drafting might similarly provide insight into the amendment culture a given originating coalition was intending to create and further develop the link between amendment rules and amendment culture. For example, if the originating coalition is dominated by the ruling coalition, does the ruling coalition assume its own electoral security, and thus create low thresholds for amendment ratification seeking to develop a culture of acceleration? Or does the ruling coalition consolidate its power through the constitution, designing higher ratification thresholds or areas of substantive unamendability? And how might the politics of amendment culture be constructed through these choices? Answering these questions will require detailed case studies with deep contextualized analysis (historical, political, and legal)—an ongoing research agenda indeed!

In his conclusion, Albert provides his blueprint for amendment design, highlighting a range of considerations he groups around four sets of choices. Designers must determine what is foundational; how to structure amendment initiation, proposal, and ratification; what specifications are needed to operationalize the structure; and how to codify ratified amendments. His outline is clear and concise and for designers operating in the best interests of the polity as a whole. This is a commendable effort and an excellent start to the discussion. I look forward to future work that engages the messy interest politics of constitutional design and the symbiotic relationship between law and politics.

Erin F. Delaney is Professor of Law at Northwestern Pritzker School of Law, with a courtesy appointment in the Department of Political Science. You can reach her by email at erin.delaney@law.northwestern.edu.

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