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A Symposium on Richard Albert’s Constitutional AmendmentsDismemberment or Amendment?

A Symposium on Richard Albert’s Constitutional AmendmentsDismemberment or Amendment? “When is a constitutional amendment an amendment in name alone?”1 Richard Albert poses that question at the very start of Constitutional Amendments: Making, Breaking and Changing Constitutions in which he convincingly demonstrates that this long neglected topic is an essential aspect of constitutional law and constitutionalism. Albert meticulously unpacks the many facets of his opening inquiry throughout the book to reveal amendment procedure as a kind of koan for constitutional law. The topic is koan-like not in the sense of a concept beyond the ken of rational thinking, although Albert’s paradoxically phrased opening question certainly bears some similarities to the Buddhist practice. Instead, Albert deploys his central inquiry like a koan to reveal a set of fundamental, existential questions that much of the field has ignored and, yet once revealed, demand urgent and immediate attention. Albert’s core claim is that current conceptions of constitutional change generally pose a false binary choice between alterations that legitimately amend a constitution and those that in substance amount to the creation of a new constitution. He calls for a more complex understanding of constitutional alterations and for a more comprehensive “content-based” approach to categorizing them. This approach takes into account both how a purported amendment seeks to change a constitution and the underlying purposes behind those changes and requires more nuanced assessments of the nature and legitimacy of proposed alterations.2 Across several chapters, Albert develops a detailed analytical framework for this content-based approach that offers a rich and nuanced typology of constitutional alteration. The breadth and depth of the examples of amendments he uses to illustrate this approach and to demonstrate how this analytical structure for distinguishing among amendments operates in practice is impressive. Albert confidently canvasses amendments across jurisdictions as well as time, and it is evident from the detailed descriptions and analyses that he has more than mere cursory knowledge of the specific procedural histories of these amendments, as well as the politics connected to them. These excellent accounts—in particular of amendments from jurisdictions not well-represented in the English language comparative constitutional law literature—by themselves contribute significantly to the field and make the book a superb resource. Albert’s rich and thoughtful typology is equally impressive. He carefully explicates the full implications of different forms of alteration and identifies a range of often surprising theoretical and practical implications for amendment rules and constitutional design generally. At its heart is the distinction Albert draws between amendment and what he labels “constitutional dismemberment.” Four features distinguish legitimate constitutional amendments from dismemberments: subject, authority, scope, and purpose. Among these four, however, scope is the most important. To qualify as an amendment, the change must represent continuity with the current constitutional order and stay “consistent with the existing design, framework and fundamental presuppositions of the constitution.”3 Any alterations that “repudiate the essential characteristics of the constitution and destroy its foundations” cross the line from amendment to dismemberment, even if they followed the prescribed amendment procedure to the letter.4 In spite of the negative connotations of the term, Albert states that labeling an alteration a “dismemberment” does not imply anything about its normative desirability: a “constitutional dismemberment can both enhance and weaken democracy,” and “whether a change enhances or deteriorates liberal values is unrelated” to distinguishing it as amendment or dismemberment.5 Instead, the term emphasizes a substantial break with the fundamental values of the existing constitutional regime. Thus, the original proposed Thirteenth Amendment to the U.S. Constitution, which functionally would have prohibited any further amendments affecting the legal status of slavery, Albert labels a true “amendment” because it was consistent with the original, deeply flawed, arrangement that underpinned the original constitution. By contrast, the enacted Thirteenth Amendment’s ban on the practice is properly classified as a dismemberment because of its direct repudiation of the original constitutional settlement.6 Notably, Albert does not argue that amendment rules should never permit constitutional dismemberment. Instead he advocates that those rules should distinguish between amendments and dismemberments and require a more extensive, self-conscious process for dismemberments to ensure the democratic legitimacy of any change to a “core commitment” of the original constitutional settlement.7 For Albert, a tiered set of amendment rules based on a hierarchy of core commitments enhances democracy and constitutional legitimacy by forcing a society explicitly to develop a shared consensus of constitutional values. He notes that the noncodification of the distinction between amendment and dismemberment has not stopped courts from developing a de facto hierarchy in many jurisdictions, and he argues that relying on courts and litigation to establish this hierarchy both inappropriately expands the judicial role and risks undermining the legitimacy of the constitution.8 Albert acknowledges that informal or extratextual forms of constitutional change may have tactical advantages, including the opportunity to avoid direct political confrontations over constitutional priorities, and that some processes like judicial-political dialogue over constitutional interpretation can democratize informal constitutional change.9 But, in the end, he strongly argues that effective, formal amendment rules are far preferable and, indeed, perhaps essential for a successful constitutional democracy. The “writtenness” of constitutional text is “deeply interconnected with the rule of law,” and “holds promise for cultivating a culture of public-oriented citizens who come to know, understand and respect the codified constitution and the moral commitments it entrenches.”10 Failing faithfully to adhere to the text of amendment procedures, whether by direct disregard through political maneuvering or through recognizing the effect of informal change, ultimately “degrades the constitution and undermines the rule of law.”11 No doubt such an explicit hierarchy, where possible, could have important legitimating effects for a constitution, but requiring the kind of consensus it envisions may be unrealistic under the circumstances that attend many—if not most—periods of constitutional transition. To take one prominent example, under South Africa’s two-stage constitutional drafting process, a small group of negotiators adopted a set of thirty-four constitutional principles that the newly elected Parliament could not violate in the final constitution it was tasked with drafting. While most of these principles likely represented the strong consensus of a majority of South Africans, several clearly were concessions to the minority National Party and the Inkatha Freedom Party necessary to achieve a peaceful transition.12 The kind of direct and public resolution of the hierarchy of constitutional values Albert prescribes almost certainly would have precluded the possibility of a peaceful transition. More broadly, this strong emphasis on the role of formal procedures overestimates the capacity of constitutional design to contain and constrain the importance of constitutional politics that prior chapters extensively analyze. Thus, in a masterful analysis of the challenges in meaningfully comparing amendment procedures, Albert emphasizes that constitutional politics and informal conventions often predominate over formal amendment rules and describes several examples where powerful groups disregarded difficult procedures and, conversely, examples where constitutional amendment is politically impossible.13 Albert uses these examples to illustrate how flaws in formal amendment procedures can direct constitutional politics towards extraconstitutional processes, but those same examples also show how difficult it is for even an ideal set of procedures to overcome the forces of history, culture, and politics. Constitutional Amendment takes a long neglected and largely overlooked topic and reveals the surprisingly diverse and important set of questions that both challenge existing understandings of the role and appropriate structure of amendment procedures. Albert offers a provocative set of answers to many of those questions and also opens up exciting new areas of inquiry for the comparative constitutional law field. Footnotes 1 Richard Albert, Constitutional Amendments: Making, Breaking and Changing Constitutions 1 (2019). 2 Id. at 78–82. 3 Id. at 78–79. 4 Id. at 63, 78. 5 Id. at 78, 85. 6 Id. at 62–63. 7 Id. at 261–63. 8 Id. at 263–65, 268–71. 9 Id. at 268. 10 Id. at 137. 11 Id. at 270. 12 See Christina Murray, A Constitutional Beginning: Making South Africa’s Final Constitution, 23 U. Ark. Little Rock L. Rev. 809, 814–15 (2001). 13 Albert, supra note 1, at 110. Author notes Leon M. and Gloria Plevin Professor of Law, Cleveland-Marshall College of Law. © The Author(s) [2021]. Published by Oxford University Press on behalf of the American Society of Comparative Law. All rights reserved. For permissions, pleasee-mail: journals.permissions@oup.com. This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/open_access/funder_policies/chorus/standard_publication_model) http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png American Journal of Comparative Law Oxford University Press

A Symposium on Richard Albert’s Constitutional AmendmentsDismemberment or Amendment?

American Journal of Comparative Law , Volume Advance Article – Feb 19, 2021

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Publisher
Oxford University Press
Copyright
Copyright © 2021 American Society of Comparative Law
ISSN
0002-919X
eISSN
2326-9197
DOI
10.1093/ajcl/avaa034
Publisher site
See Article on Publisher Site

Abstract

“When is a constitutional amendment an amendment in name alone?”1 Richard Albert poses that question at the very start of Constitutional Amendments: Making, Breaking and Changing Constitutions in which he convincingly demonstrates that this long neglected topic is an essential aspect of constitutional law and constitutionalism. Albert meticulously unpacks the many facets of his opening inquiry throughout the book to reveal amendment procedure as a kind of koan for constitutional law. The topic is koan-like not in the sense of a concept beyond the ken of rational thinking, although Albert’s paradoxically phrased opening question certainly bears some similarities to the Buddhist practice. Instead, Albert deploys his central inquiry like a koan to reveal a set of fundamental, existential questions that much of the field has ignored and, yet once revealed, demand urgent and immediate attention. Albert’s core claim is that current conceptions of constitutional change generally pose a false binary choice between alterations that legitimately amend a constitution and those that in substance amount to the creation of a new constitution. He calls for a more complex understanding of constitutional alterations and for a more comprehensive “content-based” approach to categorizing them. This approach takes into account both how a purported amendment seeks to change a constitution and the underlying purposes behind those changes and requires more nuanced assessments of the nature and legitimacy of proposed alterations.2 Across several chapters, Albert develops a detailed analytical framework for this content-based approach that offers a rich and nuanced typology of constitutional alteration. The breadth and depth of the examples of amendments he uses to illustrate this approach and to demonstrate how this analytical structure for distinguishing among amendments operates in practice is impressive. Albert confidently canvasses amendments across jurisdictions as well as time, and it is evident from the detailed descriptions and analyses that he has more than mere cursory knowledge of the specific procedural histories of these amendments, as well as the politics connected to them. These excellent accounts—in particular of amendments from jurisdictions not well-represented in the English language comparative constitutional law literature—by themselves contribute significantly to the field and make the book a superb resource. Albert’s rich and thoughtful typology is equally impressive. He carefully explicates the full implications of different forms of alteration and identifies a range of often surprising theoretical and practical implications for amendment rules and constitutional design generally. At its heart is the distinction Albert draws between amendment and what he labels “constitutional dismemberment.” Four features distinguish legitimate constitutional amendments from dismemberments: subject, authority, scope, and purpose. Among these four, however, scope is the most important. To qualify as an amendment, the change must represent continuity with the current constitutional order and stay “consistent with the existing design, framework and fundamental presuppositions of the constitution.”3 Any alterations that “repudiate the essential characteristics of the constitution and destroy its foundations” cross the line from amendment to dismemberment, even if they followed the prescribed amendment procedure to the letter.4 In spite of the negative connotations of the term, Albert states that labeling an alteration a “dismemberment” does not imply anything about its normative desirability: a “constitutional dismemberment can both enhance and weaken democracy,” and “whether a change enhances or deteriorates liberal values is unrelated” to distinguishing it as amendment or dismemberment.5 Instead, the term emphasizes a substantial break with the fundamental values of the existing constitutional regime. Thus, the original proposed Thirteenth Amendment to the U.S. Constitution, which functionally would have prohibited any further amendments affecting the legal status of slavery, Albert labels a true “amendment” because it was consistent with the original, deeply flawed, arrangement that underpinned the original constitution. By contrast, the enacted Thirteenth Amendment’s ban on the practice is properly classified as a dismemberment because of its direct repudiation of the original constitutional settlement.6 Notably, Albert does not argue that amendment rules should never permit constitutional dismemberment. Instead he advocates that those rules should distinguish between amendments and dismemberments and require a more extensive, self-conscious process for dismemberments to ensure the democratic legitimacy of any change to a “core commitment” of the original constitutional settlement.7 For Albert, a tiered set of amendment rules based on a hierarchy of core commitments enhances democracy and constitutional legitimacy by forcing a society explicitly to develop a shared consensus of constitutional values. He notes that the noncodification of the distinction between amendment and dismemberment has not stopped courts from developing a de facto hierarchy in many jurisdictions, and he argues that relying on courts and litigation to establish this hierarchy both inappropriately expands the judicial role and risks undermining the legitimacy of the constitution.8 Albert acknowledges that informal or extratextual forms of constitutional change may have tactical advantages, including the opportunity to avoid direct political confrontations over constitutional priorities, and that some processes like judicial-political dialogue over constitutional interpretation can democratize informal constitutional change.9 But, in the end, he strongly argues that effective, formal amendment rules are far preferable and, indeed, perhaps essential for a successful constitutional democracy. The “writtenness” of constitutional text is “deeply interconnected with the rule of law,” and “holds promise for cultivating a culture of public-oriented citizens who come to know, understand and respect the codified constitution and the moral commitments it entrenches.”10 Failing faithfully to adhere to the text of amendment procedures, whether by direct disregard through political maneuvering or through recognizing the effect of informal change, ultimately “degrades the constitution and undermines the rule of law.”11 No doubt such an explicit hierarchy, where possible, could have important legitimating effects for a constitution, but requiring the kind of consensus it envisions may be unrealistic under the circumstances that attend many—if not most—periods of constitutional transition. To take one prominent example, under South Africa’s two-stage constitutional drafting process, a small group of negotiators adopted a set of thirty-four constitutional principles that the newly elected Parliament could not violate in the final constitution it was tasked with drafting. While most of these principles likely represented the strong consensus of a majority of South Africans, several clearly were concessions to the minority National Party and the Inkatha Freedom Party necessary to achieve a peaceful transition.12 The kind of direct and public resolution of the hierarchy of constitutional values Albert prescribes almost certainly would have precluded the possibility of a peaceful transition. More broadly, this strong emphasis on the role of formal procedures overestimates the capacity of constitutional design to contain and constrain the importance of constitutional politics that prior chapters extensively analyze. Thus, in a masterful analysis of the challenges in meaningfully comparing amendment procedures, Albert emphasizes that constitutional politics and informal conventions often predominate over formal amendment rules and describes several examples where powerful groups disregarded difficult procedures and, conversely, examples where constitutional amendment is politically impossible.13 Albert uses these examples to illustrate how flaws in formal amendment procedures can direct constitutional politics towards extraconstitutional processes, but those same examples also show how difficult it is for even an ideal set of procedures to overcome the forces of history, culture, and politics. Constitutional Amendment takes a long neglected and largely overlooked topic and reveals the surprisingly diverse and important set of questions that both challenge existing understandings of the role and appropriate structure of amendment procedures. Albert offers a provocative set of answers to many of those questions and also opens up exciting new areas of inquiry for the comparative constitutional law field. Footnotes 1 Richard Albert, Constitutional Amendments: Making, Breaking and Changing Constitutions 1 (2019). 2 Id. at 78–82. 3 Id. at 78–79. 4 Id. at 63, 78. 5 Id. at 78, 85. 6 Id. at 62–63. 7 Id. at 261–63. 8 Id. at 263–65, 268–71. 9 Id. at 268. 10 Id. at 137. 11 Id. at 270. 12 See Christina Murray, A Constitutional Beginning: Making South Africa’s Final Constitution, 23 U. Ark. Little Rock L. Rev. 809, 814–15 (2001). 13 Albert, supra note 1, at 110. Author notes Leon M. and Gloria Plevin Professor of Law, Cleveland-Marshall College of Law. © The Author(s) [2021]. Published by Oxford University Press on behalf of the American Society of Comparative Law. All rights reserved. For permissions, pleasee-mail: journals.permissions@oup.com. This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/open_access/funder_policies/chorus/standard_publication_model)

Journal

American Journal of Comparative LawOxford University Press

Published: Feb 19, 2021

There are no references for this article.