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Balkinization Symposiums: A Continuing List E-mail: Jack Balkin: jackbalkin at yahoo.com Bruce Ackerman bruce.ackerman at yale.edu Ian Ayres ian.ayres at yale.edu Corey Brettschneider corey_brettschneider at brown.edu Mary Dudziak mary.l.dudziak at emory.edu Joey Fishkin joey.fishkin at gmail.com Heather Gerken heather.gerken at yale.edu Abbe Gluck abbe.gluck at yale.edu Mark Graber mgraber at law.umaryland.edu Stephen Griffin sgriffin at tulane.edu Jonathan Hafetz jonathan.hafetz at shu.edu Jeremy Kessler jkessler at law.columbia.edu Andrew Koppelman akoppelman at law.northwestern.edu Marty Lederman msl46 at law.georgetown.edu Sanford Levinson slevinson at law.utexas.edu David Luban david.luban at gmail.com Gerard Magliocca gmaglioc at iupui.edu Jason Mazzone mazzonej at illinois.edu Linda McClain lmcclain at bu.edu John Mikhail mikhail at law.georgetown.edu Frank Pasquale pasquale.frank at gmail.com Nate Persily npersily at gmail.com Michael Stokes Paulsen michaelstokespaulsen at gmail.com Deborah Pearlstein dpearlst at yu.edu Rick Pildes rick.pildes at nyu.edu David Pozen dpozen at law.columbia.edu Richard Primus raprimus at umich.edu K. Sabeel Rahman sabeel.rahman at brooklaw.edu Alice Ristroph alice.ristroph at shu.edu Neil Siegel siegel at law.duke.edu David Super david.super at law.georgetown.edu Brian Tamanaha btamanaha at wulaw.wustl.edu Nelson Tebbe nelson.tebbe at brooklaw.edu Mark Tushnet mtushnet at law.harvard.edu Adam Winkler winkler at ucla.edu Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts Formalism and Democracy in the Design of Amendment Rules
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Wednesday, April 22, 2020
Formalism and Democracy in the Design of Amendment Rules
Guest Blogger For the Symposium on Richard Albert, Constitutional Amendments: Making, Breaking, and Changing Constitutions (Oxford University Press, 2019). David Landau
Richard Albert’s new book, Constitutional Amendments:
Making, Breaking, and Changing Constitutions, is a pathbreaking contribution
to comparative constitutional law and the burgeoning literature on constitutional
change, in several different senses. The book is a comprehensive guide to
issues in designing amendment rules, such as the choice of single versus
tiered- or multi-tracked rules for change, and the role of time in amendment. It
also breaks new ground by covering issues of amendment that I have never seen nor
honestly even thought about, such as the chapter on how to codify an amendment
– at the end of the constitution or interspersed with the text – and relatedly
on whether amendments erase the original constitutional text or leave it intact.
This is a fascinating issue, and one with significant variation. To my
knowledge, Albert’s book provides the first treatment of it.
Finally, the book is conceptually significant. Albert’s
concept of a dismemberment is a key contribution. The idea is that some things
look like an amendment, but really are not because of their scope or effect,
and further that this distinction should be embedded in the design of amendment
rules. Constitutions should thus work off a spectrum and use more demanding
rules for certain kinds of changes – what Albert calls a “multi-tracked”
amendment rule and what Ros Dixon and I have elsewhere called a tiered
constitutional design.
In this post, I want to elaborate on a set of challenges to Albert’s
project, which ultimately I think stem from its formalism. He seeks to build a
universalistic theory of amendment, covering democracies and non-democracies
alike. Thus, his concept of a dismemberment is a neutral one – it covers any
constitutional change that undoes a core part of the current constitutional
order, regardless of the direction of change or the nature of the starting
point. Authoritarian constitutions can be dismembered just as liberal
democratic ones can. From a normative perspective, too, the design
recommendations are the same: all constitutions should take steps to protect their
core values and identities, regardless of what those values and identities are.
And perhaps more importantly, those seeking to change those values should follow
the rules laid out in the constitution, rather than evading or ignoring them. Albert’s
project is thus not a liberal democratic one, but a broader, more universal
one, which seeks to guide the design of amendment rules in all constitutions.
But from the perspective of scholars, designers, and
practitioners of constitutionalism, such a value-neutral conception of the
rules of constitutional change is normatively problematic, and maybe impossible.
It labels as the same thing – as a dismemberment – the destruction of a liberal
democratic constitution via abusive forms of constitutional change that, say,
undermines judicial independence or consolidates executive power and changes
that move in the opposite direction, by democratizing an older, authoritarian
constitution as in the post-Communist world. Albert’s design recommendations
and recommendations for reformers make sense in the former case to protect
against democratic erosion, but probably not in the second case when their
import would be to safeguard or prolong authoritarianism.
In fact, Albert’s book does adopt a normative stance: it
privileges formalism, as he makes clear in the book’s last chapter. Albert does
not dismiss virtues of informal change, but he says that change should, as much
as possible, reflect the formal rules. Albert rightly points out that adhering
to the written rules of constitutional change is often a normative good. It usually
increases stability, enhances legitimacy, and provides a focal point for actors
seeking to carry out constitutional projects. But at the same time, the benefit
of following the formal rules is not intrinsic, but rather is conditional on
its relationship with other values. And the relationship between amendment
rules and those broader values is complex. There are plenty of examples in
recent history – Hungary, Turkey, Venezuela, and Ecuador, for example – where
packages of amendments that certainly or arguably followed the formal rules of
constitutional change did immense damage to the liberal democratic order. On
the other hand, if you have an authoritarian starting point, insisting on
adherence to existing amendment rules might prolong that regime. Stability is
not an unmitigated good, but a conditional one.
Furthermore, the concept of adherence to the formal rules is
itself often difficult to discern. Constitutional design is of necessity
incomplete. The tiered or multi-track amendment rules that both Richard and I
favor are good examples. These rules, as they are normally written, continue to
leave an enormous amount of discretion in courts and other political actors. As
an example, consider a 2014 Ecuadorian case that determined the route needed for
Rafael Correa to eliminate presidential term limits. Ecuador has a
state-of-the-art, three-tiered design, differentiating amendment from a partial
reform and a replacement. The question in the case was whether completely eliminating
term limits would impact the “fundamental structure of the state” or “restrict
constitutional rights and guarantees.” Changes affecting these aspects of
constitution required more demanding procedures, such as referenda or constitution-making
process. There are good arguments of course that eliminating presidential term
limits would at least impact the fundamental structure of state, and also maybe
restrict constitutional rights and guarantees. But the Ecuadorian
Constitutional Court was dominated by supporters of President Correa, who by
that point had been in power for about eight years and had carried out other
reforms to increase power over judiciary. The court predictably said that the baseline
method of constitutional change was acceptable. Correa’s efforts to remain in
power eventually failed, but they were blunted by street protests rather than
constitutional design. In this case, even a state-of-the-art amendment rule failed
to prevent a president from eliminating term limits, and from doing plenty of
other things to consolidate power. Formal adherence to the rules may not be that
much of a defense of the legal order, even when you have a good design.
The incompleteness of a formalistic conception of
constitutional change also underlies my disagreement with Albert on one of the
most significant developments in the contemporary theory of constitutional amendment
– the judge-made unconstitutional constitutional amendment doctrine, as it has
developed in a large number of countries such as India and Colombia. Richard is
both here and elsewhere extremely critical of the doctrine, largely on the
grounds that it clashes with the rule of law. He prefers a tiered or multitrack
amendment rule, which creates greater predictability and less tension with
democracy. But many constitutions around the world are not ideal designs, and
in those systems the default rules of constitutional change are themselves ripe
for abuse by would-be authoritarian actors. The case for the unconstitutional
constitutional amendment doctrine, in those contexts, is that it lets judges do
ex post what the design has not done ex ante: protect sensitive parts of the
liberal democratic constitutional order against the risk of abuse of democratic
erosion. The judicial derivation of an unconstitutional constitutional
amendment doctrine, as an inference from the text or from the nature of
constitutionalism, may in some sense be a deviation from the formal rules, but
also a potentially useful one. Take the famous Colombian case where the
Constitutional Court used a wholly judge-made version of the unconstitutional
constitutional amendment doctrine to stop Alvaro Uribe from potentially seeking
a third consecutive term in office, after he had already amended the
constitution to allow two consecutive terms. The formal rules of the
constitution made it easy for Uribe to amend the constitution any way he wanted,
and thus the Court’s decision plausibly helped to prevent an erosion of
democracy.
In short, a theory of amendment rules that purports to be
value-neutral, or that privileges stability or formalism above all else, won’t
always do the things we want amendment rules to do. Richard Albert has given scholars
and constitutional designers an invaluable guide to thinking through the wide
range of issues connected to the design of amendment rules. His conceptual
vocabulary of a dismemberment helps us to distinguish between forms of change,
and many of his normative recommendations – most importantly creating
multi-track or tiered amendment designs rather than simple, single-track rules
– are major improvements to current practice. But they ultimately make sense
against a liberal democratic starting point, and in the service of the
protection of liberal democratic constitutionalism.
David Landau is the Mason Ladd Professor and Associate
Dean for International Programs at Florida State University College of Law. You
can reach him by email at dlandau at law.fsu.edu.
Posted 9:30 AM by Guest Blogger [link]
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