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.
***
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.
***
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.