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.