Constitutional Designment and Amendment: Towards Decreasing Amendment Difficulty?

Guest Blogger

This post was prepared for a roundtable on Comparative Constitutional Design, convened as part of LevinsonFest 2022—a year-long series gathering scholars from diverse disciplines and viewpoints to reflect on Sandy Levinson’s influential work in constitutional law. 

Rosalind Dixon 

Over the last 40 years, Sandy Levinson has left a large imprint on debates over constitutional design: while many American constitutional scholars of his generation have contributed to the “export” of American constitutional ideas and models, Sandy has consistently tried to warn the rest of the world against buying American. 

Nowhere is this more evident than in global debates on constitutional design and amendment. According to Sandy, there are numerous provisions of the Constitution that harm democracy in the US.[1] A lead example is the design of the US Senate, and the disproportionate power it gives to small states.[2] And rather than permitting these flaws to be corrected by a process of amendment, Art V of the US Constitution makes these flaws almost impossible to overcome: In Sandy’s words, it places democratic politics in America in an “iron cage”.[3] 

Sandy, then, is a strong advocate for flexibility in the design of formal constitutional amendment procedures. In large part, I share this view. Flexible procedures for constitutional amendment have numerous advantages from a democratic standpoint.[4] They allow for the periodic renewal of democratic consent to existing constitutional arrangements. They provide a means for updating constitutional norms and provisions, in response to changing norms and circumstances. And they provide a means by which democratic majorities can modify or override decisions by courts about which there is reasonable democratic disagreement.

They also do so in ways that help channel the expression of democratic opinion into regular legal channels.[5] This can help promote respect for the rule of law. And often, it can encourage the expression of the ‘will’ of the majority in ways that are shaped by processes of legislative deliberation. (The only exception is in cases of amendment by plebiscite or via a process of popular initiative.) 

The real question is whether there are any dangers to flexibility, which might warrant more stringent requirements on processes of constitutional amendment. One danger is the possibility of what David Landau and I have called “abusive” constitutional amendment—i.e., the use of formal processes of amendment to erode or undermine the “minimum core” of democracy itself. [6] And Sandy is clearly sensitive to this danger. 

He has been a leading contributor to global scholarship and debate on democratic erosion, including through his important work with Mark Graber and Mark Tushnet producing the large and impressive global collection on this topic, Constitutional Democracy in Crisis?[7] And he has become a keen student of, and contributor to, debates on the unconstitutional constitutional amendment doctrine. 

Another danger arises much earlier in the process of constitutional design and drafting itself. As Aziz Huq has noted, flexible processes of amendment give ‘losers’ in the constitutional drafting process a second bite at the cherry: assuming their electoral power increases, it allows them to unravel many of the carefully worked out compromises that underpinned the successful adoption of a constitution. Anticipating this, they can also make political actors less willing to come to the table and negotiate constitutional compromises.

And for some scholars, these dangers are enough to favor quite rigid constitutional amendment rules. This answer, however, is clearly anti-Levinsonian in character. 

What is arguably more consistent with Sandy’s own position—of rejecting amendment rigidity—is to embrace a “tiered” and time-sensitive approach to the design of constitutional amendment rules. The idea behind tiered constitutional design is quite simple: it is that some provisions should be placed on a “higher” or more entrenched tier of a constitution, than others, or be subject to more demanding requirements for constitutional amendment.[8] David Landau and I have also pointed to how a tiered approach to amendment could be targeted to protecting the democratic minimum core of a constitution, as compared to other more symbolic or expressive provisions. And we have shown how these this form of tiering could interact with differential approaches to the length or specificity of constitutional language.[9] 

It is much trickier, however, for a tiered design to address the danger of amendments unravelling constitutional design choices and commitment. To do so, each party to constitutional negotiations would need to have roughly the same number of provisions they care about on both the higher and lower, or more entrenched or more flexible constitutional tier.[10] A potentially more promising approach, therefore, might be to combine constitutional tiering with a form of constitutional de-escalator—or decreasing amendment difficulty. 

On this logic, both a higher and lower tier might be made quite rigid or difficult to amend in the early years of a constitution’s operation, but then made more flexible after (say) 10 or 15 years. This is the same logic that underpins proposals for a form of constitutional “escalator” in the degree of super-majority support required to authorise the extension of certain exceptional constitutional measures, such as during an emergency.[11] It is simply that the logic is applied in reverse: instead of becoming more onerous over time, the requirements for constitutional amendment become more flexible. 

Another option would be to adopt a complete constitutional “freeze” for a given period, and make formal amendment possible only after that period. Art V of the US Constitution, for example, imposed a complete ban on amendments of Art I s 9 cl 1 and 4 until 1808. But this more categorical approach has clear downsides. It risks making it impossible to correct mistakes in constitutional design or respond to new and wholly unforeseen crises. But there will be clear value in making it difficult to unravel the original constitutional bargain, until such times as new norms and practices have begun to develop that give it life and popular and/or institutional support. 

In thinking about how constitutional design can escape Sandy’s (or America’s) iron cage, two key design principles seem relevant: the principles of tiering and sequencing.[12] 

Rosalind Dixon is a Professor of Law and Justice at the University of New South Wales. You can contact her at rosalind.dixon@unsw.edu.au.