Balkinization: Standing on Shoulders of Colleagues for New Vistas in Constitutional Amendment

Standing on Shoulders of Colleagues for New Vistas in Constitutional Amendment

Guest Blogger

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

Richard Albert

I remember well my first job in law. At the time, December 2000, I was finishing my first semester at the Yale Law School. I had an all-star roster of professors: Guido Calabresi, for torts; Stephen Carter, contracts; Owen Fiss, civil procedure; Rob Harrison, legal research; and Kate Stith, who taught my small-group course in constitutional law. We had spent much of the term, both in and out of class, discussing the legal questions involved in the case that came to be known as Bush v. Gore. I was utterly fascinated, and set out to learn more.

Imagine my excitement when I was hired by Jack Balkin—then and still today the Knight Professor of Constitutional Law and the First Amendment—to work as his Research Assistant for a paper that was ultimately published in the Yale Law Journal as Bush v. Gore and the Boundary Between Law and Politics. To learn by Jack’s side—what an introduction to the craft of legal scholarship!

Twenty years later, Jack has once again given me a very special opportunity, this time by convening a symposium on my book entitled Constitutional Amendments: Making, Breaking, and Changing Constitutions (Oxford University Press, 2019), featuring colleagues I admire dearly—Erin Delaney (Northwestern), Mark Graber (Maryland), David Landau (Florida State), Sandy Levinson (Texas), Gene Mazo (Rutgers), and Julie Suk (CUNY). It is no exaggeration to say that in writing the book over the past few years I have stood on the shoulders of each of them, and of course others too, to see far beyond what I could have without them.

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It is appropriate to begin with Sandy Levinson’s comment in this symposium because his extraordinary 1995 book on constitutional amendment showed me, for the first time, in 1998 or 1999, while I was still an undergraduate student at Yale, just how exciting studying constitutional amendment could be. One question that I encountered first in Levinson’s book is whether anything in a constitution should be unamendable, meaning removed from the sphere of amendable matters and hoisted above constitutional politics. Levinson returns to this question in his comment on my own book, suggesting that one way to guard against the threat of a “runaway convention” (assuming a new constitutional convention were held today in the United States) is to adopt “the notion that there are, as in India, certain ‘basic’ features of the Constitution that render their change, without a full-scale revolution, unconstitutional.” Levinson points also to the German Basic Law, which “notably declares in its so-called ‘eternity clause’ that two essential features, its commitment to the value of ‘dignity’ and to federalism as a way of dividing power in Germany, are unamendable.” Unamendability may well be the kind of backstop that could reassure Americans that a new constitutional convention would not produce an unrecognizable constitution that did violence to the values they hold most dear. But unamendability comes at great cost.

Unamendability undermines the basic promise of democratic constitutionalism by limiting the universe of possibilities open to those whom the constitution governs. It withholds from the people and their representatives more than a mere procedural right to amend the constitution; it hijacks their most basic of all democratic rights. Where a constitution denies the power of amendment and the fundamental right of self-definition, a democratic constitution cannot be what it is intended to be: a continuing autobiography of peoples, a project of discernment, and an evolving self-portrait. I therefore resist suggestions that constitutional designers should adopt unamendability, even though I have argued and continue to believe that unamendability serves important expressive functions.

In her contribution to the symposium, Julie Suk asks a timely question with reference to the current debate on the Equal Rights Amendment (ERA), which perhaps one day will be recognized as the Twenty-Eighth Amendment to the United States Constitution: “If not by the formal amendment rule or by a principle of contemporaneity, how can an amendment that expands the boundaries of a political community be legitimized?” A leading expert on the ERA, Suk has just published an important book on the march to its ratification, released this year to coincide with the 100th anniversary of the Nineteenth Amendment, which constitutionalized the right to vote without regard to sex. The story of the ERA—which was revived just recently after having apparently expired in 1982—raises a tension between process and promise. Should the rules of constitutional amendment in Article V be interpreted strictly, even if this legalistic interpretation holds back the realization of equality embedded in the formative texts of the United States, including the Declaration of Independence, the Reconstruction Dismerberments, and the many franchise-expanding constitutional changes since then? Or should Article V be interpreted permissively to accommodate the peculiar circumstances under which proponents of the ERA now seek its ratification? Suk’s preference is the latter, and she makes a compelling case why in her new book, which I recommend to all. But there are many other scholars who see things differently, including Sai Prakash (Virginia), who has explained why in his own compelling way.

A similar tension between process and promise appears also in David Landau’s contribution to this symposium. Landau is concerned that my preference for codified rules sustained by a democratic culture of rule-following leaves open the possibility that incumbents might pass constitutional amendments that amount to what he has elsewhere termed abusive constitutionalism, a phenomenon he has documented and theorized in exquisite detail. Landau much prefers authorizing courts to invalidate constitutional amendments that undermine the liberal values he believes should underlie constitutions—even those amendments that have in every way satisfied the procedures enumerated in a given constitution’s formal amendment rules. Landau points to Colombia as a case of a successful use of this court-created doctrine of unconstitutional constitutional amendment. But many other countries offer troubling counter examples.

Two cases from Honduras highlight the politicization of the doctrine of unconstitutional constitutional amendment. The Honduran Constitution limits the president to only one four-year term and makes the rule entrenching this term limit formally unamendable. Then-President Manuel Zelaya tested this rule in 2009 when he proposed a referendum on whether the unamendable term limit should be amended to allow him to extend his presidency. The National Congress ousted Zelaya and named Roberto Micheletti the new president, while the Supreme Court approved a military order to detain Zelaya on charges of treason and abuse of authority. The Court enforced the constitutional text as written, interpreting the formally unamendable rule entrenching a single-term limit as definitively barring any extension of the presidential term. But just a few years later in 2015, the Honduran Supreme Court took the directly contrary position. In a unanimous judgment, the Court rendered inapplicable and without effect the unamendable constitutional rule establishing a single-term presidential limit—the same rule the same Court had enforced only a few years before by approving the removal of Zelaya from the presidency. This Honduran example should strike us as particularly problematic in light of these two directly conflicting Supreme Court judgments separated by a period of just six years. But it is evidence of the vast power that courts around the world have arrogated to themselves in the name of defending democracy, only in the end to erode its very foundations. Despite Landau’s strong arguments, I find it difficult to accept the democratic legitimacy of a court purporting to invalidate a procedurally-perfect constitutional amendment that has been legitimated by legislative and popular votes. This is a profound difference in views that will continue to divide us, though I continue to learn with great joy from Landau’s work and commonly turn to it first on these important questions about the judicial role.

In his comments on my book, Gene Mazo devotes a lot of attention to Russia, a region he knows quite well as one of the leading Russian constitutional experts in North America. More specifically, Mazo focuses on election practices in Russia—no surprise given that Mazo’s primary subject of scholarly research is election law, a subject about which he has already written one, two, three books, with more already on the way, including an much-anticipated monograph on constitution-making in Russia, drawing from his doctoral dissertation at Oxford University. Mazo develops the Russian case in his comment by way of urging a distinction between democratic and non-democratic regimes, making the crucial point that we ought to treat amendments in the former differently from how we treat them in the latter. This point is often lost on scholars who study constitutional design across jurisdictions, as they all-too-frequently speak of democratic constitutions in the same breath as they refer to sham constitutions. I agree with Mazo that these two kinds of regimes should be distinguished. But we should recognize also that they both use similar strategies to structure how power is divided and exercised, at least on the face of the constitutions they codify. These choices matter because of what they convey, less to those governed by the rules and more to the international community for whom sham constitutions are often written as a priority above their own people. The point here is a subtle one: it is not that we should read the amendment rules in sham constitutions as true reflections of how these constitutions operate; it is instead that we should seek to understand what the designers of amendment rules in non-democratic regimes wish to communicate to the world.

(I must also say thank you to Mazo for giving me a title that is truly over-the-top but for which I am grateful if only because it has impressed my better half, who by her own admission is hard to impress!)

As I look ahead to new writing projects in constitutional amendment, I appreciate very much the nudge from Erin Delaney in her own contribution to this symposium. She has pressed me to take the next step in future work to investigate in depth the relationship between constitutional amendment rules and their political context. There are “messy interest politics” in the design and deployment of amendment rules, she writes, since there is a symbiotic relationship between law and politics. Delaney is of course right that there remains much work to be done to uncover and understand the complexities in this relationship. Fortunately for me and others, Delaney has shown us how successfully to marry doctrinal and political analysis in her own work on courts, specifically in the United Kingdom, a region that has lived significant moments of constitutional change in recent years, though of course its transformative changes have extended beyond the judiciary. Delaney’s scholarship will be useful as I continue working on a new book I began last Fall that is intended to offer a more socio-political account of constitutional change.

I have reserved Mark Graber for last. In his piece for this symposium on my book, Graber offers an appraisal of the field, identifying patterns and trends in the scholarship on constitutionalism. The entire field of constitutionalism is well-known to Graber. (He has recently co-authored an indispensable guide to constitutional politics in the world, and his monumental work on American constitutional politics is known to all in the field. One of my favorites is his book on the most important fact of American constitutional life.)

In his appraisal of the field, Graber begins with the Warren Court and brings us to the present, what he calls “the era of right-wing populism.” Is there anything, he asks, that can be said about the central preoccupation for scholars of constitutionalism in their respective eras? The common project was once to champion courts and to divide law from politics. Then scholars sought to demonstrate the fallacy of the distinction between law and politics. Today, Graber explains, and I agree, the organizing framework for the new generation of scholarship in constitutionalism is the rule of law as an embankment against attacks on constitutional democracy. Yet precisely what the rule of law means and what it requires comes in different forms, of course, and therein may reside what distinguishes ideas and approaches among this new class of scholars writing today on constitutional change.

Graber has some useful advice for the new generation, of which I am a part: let us not forget that actions have actors. The pieces on a chessboard do not move by themselves, Mark might say, referring to one of his master-level hobbies. In other words, constitutions are not self-executing. They are put into motion by incumbents and also by their opponents in order to achieve their respective ends. We should heed this advice as the new generation of scholars in constitutional change diagnose problems with various constitutional designs and brainstorm how to protect what we value most in constitutional regimes. Graber’s advice is always well-taken but it of course reflects the central preoccupation of his own generation, which was and remains to collapse the distinction between law and politics. I agree that recognizing the separation of law from politics is a necessary condition for a full appreciation of the pathologies, possibilities, and prosecution of constitutional politics. But the weakness of that generational approach was to dismiss the significance of writtenness and codification, and to elevate the importance of informal changes to constitutions. The act of changing the constitution without earning the democratic legitimacy that comes from satisfying the codified requirements for altering the master-text is where the real power plays occur, in my view. Writtenness, and the barriers to modifying what is codified, is intended to guard against that form of conduct. The new generation of scholars of constitutional change—my own generation—appreciates the power of text, and recognizes that the pen can still today be mightier than the sword.

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Jack has done the field a great service by creating Balkinization and by so generously sharing its platform. Today, twenty years after I first benefitted from the opportunity to serve as his Research Assistant in my first job in law, I am once again a happy beneficiary of the sun he so brightly shines on his colleagues, this time with this very special symposium he has convened on my book on Constitutional Amendments: Making, Breaking, and Changing Constitutions (Oxford University Press, 2019). My deepest thanks to Jack for inviting Erin, Julie, Sandy, Mark, David, and Gene to participate in this symposium, and also for his continued generosity over so many years.

Richard Albert is the William Stamps Farish Professor in Law and Professor of Government at The University of Texas at Austin. Email: richard@richardalbert.com.

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