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The Wuthering Heights of Constitutional Amendment: A Portrait of Contemporary Theory and Practice

The Wuthering Heights of Constitutional Amendment: A Portrait of Contemporary Theory and Practice Overview: A Möbius Strip Richard Albert is the contemporary scholar who has done the most to place constitutional amendment in the global academic spotlight and invite (and actively seek the means to generate) a broad, inclusive, and refreshing discussion on their many dimensions. Where before there were only arid philosophical analyses of rules of change and the theory of legal systems, skinny references of constitutional lawyers to particular amendment clauses or episodes, and an emerging body of literature on constitutional longevity and change in whose context the singularity of amendment was not entirely visible, we now have a rich and eye-opening scene. Albert’s recent writings are now gathered in a book: Constitutional Amendments.1 The book begins with a flexibly constructed introduction and from there advances backwards: it goes from products to processes, not from processes to products as most treatments of constitutional amendment do. Instead of first addressing amendment procedures, describing their possible instantiations, and presenting the academic debate on the measurement of amendment difficulty; to then moving to explore its formal (codification) and substantive (amendments, dismemberments) results, raising the debate about their validity, and closing with a more general reflection on the uses of amendment, it proceeds the other way around. This structure has the advantage of maintaining the attention of the reader, who contemplates how the pieces of the puzzle fall progressively into place while being taken away by a sort of Möbius strip dynamics that, when the last page is reached, invites an immediate return to the beginning. This sensation of fluidity is reinforced by the fact that some of the sections could easily have been situated differently, ultimately suggesting that the book’s contents are merely a selection out of a broader pool of material.2 The book closes with a blueprint for addressing the process of designing amendment clauses through four different sets of choices. The argument is interspersed with examples from all over the world (although the United States and Canada are covered in somewhat more detail). Yet it is clear at all times that the goal is not to describe and evaluate those national practices in themselves, but to identify and analytically organize the many dimensions of contemporary amendment practice. In what follows, I will underline three points. First, I will emphasize that the book superbly charts the amplified contours of contemporary amendment practices, illuminating dimensions that had previously gone ignored, and providing a template for a truly global conversation on amendment. Second, I will underline that Albert has written a distinctively uncharged book in philosophical and political terms—an option that comes with costs, but that is probably crucial to its success in actually providing an entire roadmap, instead of trying to go deeper on some points at the risk of getting stuck and never completing the journey. Third, I will pause on some of the substantive theses that Albert nonetheless advances along the way, which generally reflect a sound disposition to avoid extremes and favor democracy-reinforcing solutions. I will identify, however, two internal tensions: one associated with the way he advocates for distinguishing dismemberments from amendments while rejecting unamendability as a bad idea, and the other associated with the slightly conflicting messages the book sends with regard to the ease and difficulty in constitutional reform. These tensions are, however, not so much a problem of the analysis but a sign of its ultimate success. There are tensions in the analysis because there are important tensions in contemporary amendment law and scholarship. As I will argue in closing, Albert’s effective roadmap reveals a landscape with a few wuthering heights, rendering vivid some of the arduous and consequential debates that are bound to shape the development of the law in this area. I. Processes, Products, and Practices: An Expanded Picture The book portrays amendment processes and results with the richness necessary to be fair to contemporary constitutional design and political practice, successfully providing the “roadmap for navigating the intellectual universe of constitutional amendment and . . . a blueprint for building and improving the rules of constitutional change” promised in the introduction.3 Chapters 3, 4, 5, and 6 build on Albert’s blueprint for conceptualizing amendment procedures. First, Albert shows that to make sense of our constitutional world it is necessary to speak both of codified and uncodified amendment rules. Some of the developments he presents under the rubric of uncodified rules were traditionally imagined as “incidents” in political dynamics, or as violations of amendment rules, but Albert’s recasting seems correct: it is more accurate to conceive them as part of the rules of change. With regard to written amendment procedures, we are provided a full basket of helpful notions: the distinction between single- and multitrack procedures, in combination with the inquiry focused on determining whether each track may be used to change all provisions or only some of them; the identification of “safe harbor” rules; the distinction between deliberation “floors” and “ceilings”; the identification of codified, interpretive, and constructive modalities of unamendability; the difference between inter- and intragenerational amendment. These contributions assemble the sort of capacious “intellectual universe” necessary to capture, guide, and evaluate constitutional practice. The most original contribution is, in my view, the section on amendment codification techniques, which Albert classifies into four models: appendative, disaggregative, integrative, and invisible. The study of the way these models operate in the United States, Canada, and Mexico demonstrates that this is an extremely consequential question, which powerfully impacts the extraction of constitutional meaning but is never given the smallest thought by drafters, interpreters, or the public at large. While Albert’s roadmap expands the confines of perception, it also helps us imagine how we could push them even further. One could complement the roadmap, for instance, by systematically charting the different modalities of judicial review intervention on amendment processes, or by pausing to illustrate the distinctive political salience of specific amendment stages—such as rounds of state ratification or referendums. The book provides useful tools to continue the charting, launch case studies, and generally venture into all sorts of underexplored “detours” in amendment practice. II. Self-standing, “Thin” Amendment Theory The most remarkable feature of the book is the way it keeps the theoretical and political discussion closely constrained. Echoing the familiar distinction in political theory between “thick” and “thin” theories—the latter being crafted to fulfill certain functions in situations where there are incompatible or only partially compatible comprehensive understandings of the same phenomena—we may call Albert’s theory a thin theory of amendment.4 Amendment theories typically associate any proposed reform with complex understandings about constituent power, democracy, constitutionalism, or legal validity. Albert’s book provides a conceptual frame that facilitates intercommunication and dialogue between these highly heterogeneous proposals. There are signs of “thinness” all along. Consider Chapter 1’s nomenclature. Although the title (“Why Amendment Rules?”) could have presaged a complicated discussion on democracy, constitutionalism and the nature of legal systems, the chapter more earthily explores a range of different “uses” of amendment, distinguishing between formal, functional, and symbolic uses. “Formal” could have been named functional, “functional” could have been named normative (or political), and “symbolic” could have been named identitarian—but at the risk of igniting high-voltage reactions or dispersing the reader’s attention down complex and divergent paths. Likewise, Albert presents a discussion of the authoritarian use of amendments, and of the efficacy of certain constitutions, as an exploration of “authenticity” in the symbolic use of amendment, thus keeping the temperature low.5 Another example is the analysis in Chapter 2 of the “boundaries” of amendment, which is actually a discussion of the concept of amendment itself. While Chapter 3, in view of U.S. practice, argues that amendments created by procedurally invalid means may be nonetheless amendments, Chapter 2 introduces the notion of procedurally regular amendments that are amendments only in name, building on an earlier idiosyncratic distinction between continuous and discontinuous constitutional change,6 to ultimately develop a “content-based” conception that differentiates amendments from dismemberments based on their “coherency” and “consistency” with the existing constitution.7 Later, he presents what he calls the “conventional theory of constitutional change,” which includes the idea that there are unconstitutional constitutional amendments that must be expelled from the system. Each of these questions is intertwined with extremely dense philosophical, political, and legal debates, yet are presented undramatically. The construction of this constitutional “grammar” goes a bit fast on two points. One is the question of the amendability or unamendabilty of amending rules. Major legal theorists have all tried to come to terms with this question, which is connected with the quite intractable debate on legal self-reference.8 Excepting his general view that unamendability is problematic, Albert contends that constitutions should be clear in stating that amendment rules are unamendable but does not otherwise emphasize the architectural importance of the issue.9 The second point concerns the theories used by courts to invalidate amendments, in connection with the previous question of whether it is justifiable that courts go about such review without a clear mandate to that effect. Albert writes in passing that the strongest justification for the practice is having courts counterweight a potentially unbridled amending power and refers to several modalities of review,10 but he does not particularly flag down the conceptual and practical difficulties involved in determining their scope, intensity, or in trying to separate procedural from substantive review. In any case, the book clearly succeeds overall at simultaneously signaling substantive complexity and keeping it in check. And while the strategy feels sometimes like wing clipping, it is probably the only way of fulfilling the book’s distinctive, mapping mission. III. Middle-Ground Substantive and Methodological Positions and Their Tensions For all the careful bridling of intractability in amendment debates, Albert’s intellectual map has nonetheless several inbuilt substantive positions. Two of them are, I argue, in tension. The first one has to do with the distinction between amendment and dismemberment, a core proposal of the book. Descriptively, it makes every sense: binarism has often proven inadequate to account for contemporary realities, and constitutional amendment does not seem to be an exception—the notion of “dismemberment” effectively contributes to identify intermediate realities that were previously not distinct. As mentioned, the primary difference between amendment and dismemberment is “scope,” and scope is content: big change versus small change; content that destroys the constitution versus content that merely modifies it, in different ways.11 In an associated normative twist, Albert argues that procedurally treating dismemberments like amendments is democratically problematic; yet despite the negative connotation of the word, his argument is not that dismemberments must be avoided, but rather that special procedures—more difficult than the ordinary—must be enacted to pass them.12 But this then enters into tension with Albert’s rejection of unamendability on democracy-based grounds, coupled with an appeal to an “inherent right” of the people to reinvention.13 The argument on which “unamendability scholars” justify the invalidation of amendments that destroy the identity of the constitution is, precisely, that certain changes can be effected democratically only by special means: by summoning the procedures necessary to enact a new constitution. Why are democracy-based arguments conclusive to justify special procedures to enact dismemberments but inconclusive to justify the sort of special procedures necessary to trigger the enactment of a new constitution? Any possible answer must rest on assumptions that are not provided. The second tension is associated with Albert’s defense of tiered amendment design. For Albert, a menu of tiered amendment options correlated with changes of different import is democratically superior to inserting eternity clauses in the constitution—a possibility he ultimately rejects as undemocratic. But this proposal is in tension with the analysis in Chapters 3 and 4 rejecting the possibility of saying something objective about degrees of amendment difficulty. The book seems to be recommending different degrees of amendment difficulty for different sorts of substantive changes just after having carefully shown that efforts to measure the degrees of difficulty ingrained in different design options are bound to fail. In my view, this contradiction arises because the discussion of rigidity measurement, surely prompted by its centrality in recent academic literature, inserts a strange body into the book—it is an empirically oriented implant into an analytical and normative-oriented body. Nowhere else is the book concerned with ascertaining, for instance, whether courts are actually capable of distinguishing changes that dismember the constitution from those that do not, or with pondering which methods may be helpful in ascertaining so. While it will always be relevant to inquire what results are empirically associated with different institutional solutions, the two things are conceptually different and the debate about how conceptual and normative proposals must be articulated with empirical findings is still very much pending. IV. The Daunting Future Albert describes and seemingly endorses a constitutional world of global theory and practice inhabited by real and fake amendments, unconstitutional pieces of constitutions, and courts that confidently separate crystals from mud in constitutional substance. Yet his procedurally oriented normative proposals suggest an ultimate, if still unarticulated, discomfort with at least some of the elements in this landscape. And happily so. In my view, both scholarship and legal practice in this area are trapped in the many difficulties implied in relying on a Schmittian conception of the constitution—now to be administered by apex courts, not by the President of the Reich. A Schmittian conception is inapt to ground core dimensions of contemporary practice, like procedural review of amendments, since, in the context of such a theory, the constitution is not authority and procedure, but fundamental decisions. Moreover, as history teaches, it lends itself to authoritarian uses as much as to democratic ones. While current practice under legalistic autocrats reveals the limitations of purely procedural paradigms of legitimacy, there is nothing in the hegemony of “material constitution” paradigms protecting us from courts and presidents using them to camouflage authoritarian projects. In letting us imagine Albert as an anti-Schmittian in disguise, the book thus crucially flags the urgency of searching for new, more nuanced, and probably nonbinary paradigms of legitimacy with regard to constitutional amendment. The book’s second internal tension also makes clear that we still must seriously discuss how to articulate empirical findings with proposals of institutional design—something that was less pressing when we simply lacked information about how designs perform. It is easy to say that normative proposals must be “empirically informed,” yet far harder to decide, in real design situations, what weight empirics must have in view of incomplete information, uncertainty about how noninstitutional factors will play out, and the existence of normative considerations calling for attention whatever the context. This ultimately reveals something important about the inner texture of comparative constitutional studies: although we are accustomed to navigating comparative matters in their profound interdisciplinarity, knowledge can sometimes be advanced only by combining inquiries that, individually, rest on distinctive methodological approaches, and we have no well-articulated metatheories as to how this combination must proceed when elaborating institutional recipes. In any case, among the broad range of distinctive approaches that are relevant to comparative constitutional matters, there must always be space for the sort of exercise this book brilliantly exemplifies: an exercise that identifies, names, distinguishes, classifies, reveals, and interrogates, generating the conceptual conditions for loose, amplified interdisciplinary interchange to become meaningful and productive conversation. Footnotes 1 Richard Albert, Constitutional Amendments: Making, Breaking and Changing Constitutions (2019). 2 Chapter 3, on measurements of amendment difficulty, contains a section on uncodified changes to amendment rules that—together with Chapter 4, on “varieties of unamendability”—could have been moved to Chapter 5, on the architecture of amendment processes. The normative discussion on “democracy and unamendability” in Chapter 5, for its part, might have been severed from the description of amendment architectures. 3 Albert, supra note 1, at 4. 4 See, e.g., Michael Walzer, Thick and Thin (1994); John Rawls, Political Liberalism (1993). 5 Albert, supra note 1, at 49–59. 6 Id. at 17. 7 Id. at 82. 8 See, e.g., Alf Ross, On Law and Justice (1953); Georg H. von Wright, Norm and Action (1963); Georg H. von Wright, On Self-reference and a Puzzle in Constitutional Law, 78 Mind 1 (1969); H.L.A. Hart, Essays in Jurisprudence and Philosophy 170–78 (1983); Carlos S. Nino, La validez del derecho (1985). For an assessment of this debate, see José Juan Moreso, Disposiciones de reforma constitucional, 10 Doxa 201 (1991). 9 Albert, supra note 1, at 202. 10 Id. at 222. 11 Albert lists four criteria of differentiation: subject, authority, scope, and purpose, but the only one doing real conceptual work is scope. Id. at 79–82. 12 Id. at 92. 13 Id. at 194–95. Author notes Associate Professor of Constitutional Law, Instituto Tecnológico Autónomo de México (ITAM, Mexico). I thank Richard Albert, my co-panelists Richard Kay, Mark Kende, Brian Ray, and our chair Ioanna Tourkochoriti for the benefits of an illuminating intellectual debate at the Annual Meeting of the American Society of Comparative Law, in Missouri in October 2019. © 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

The Wuthering Heights of Constitutional Amendment: A Portrait of Contemporary Theory and Practice

American Journal of Comparative Law , Volume Advance Article – Feb 13, 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/avaa033
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Abstract

Overview: A Möbius Strip Richard Albert is the contemporary scholar who has done the most to place constitutional amendment in the global academic spotlight and invite (and actively seek the means to generate) a broad, inclusive, and refreshing discussion on their many dimensions. Where before there were only arid philosophical analyses of rules of change and the theory of legal systems, skinny references of constitutional lawyers to particular amendment clauses or episodes, and an emerging body of literature on constitutional longevity and change in whose context the singularity of amendment was not entirely visible, we now have a rich and eye-opening scene. Albert’s recent writings are now gathered in a book: Constitutional Amendments.1 The book begins with a flexibly constructed introduction and from there advances backwards: it goes from products to processes, not from processes to products as most treatments of constitutional amendment do. Instead of first addressing amendment procedures, describing their possible instantiations, and presenting the academic debate on the measurement of amendment difficulty; to then moving to explore its formal (codification) and substantive (amendments, dismemberments) results, raising the debate about their validity, and closing with a more general reflection on the uses of amendment, it proceeds the other way around. This structure has the advantage of maintaining the attention of the reader, who contemplates how the pieces of the puzzle fall progressively into place while being taken away by a sort of Möbius strip dynamics that, when the last page is reached, invites an immediate return to the beginning. This sensation of fluidity is reinforced by the fact that some of the sections could easily have been situated differently, ultimately suggesting that the book’s contents are merely a selection out of a broader pool of material.2 The book closes with a blueprint for addressing the process of designing amendment clauses through four different sets of choices. The argument is interspersed with examples from all over the world (although the United States and Canada are covered in somewhat more detail). Yet it is clear at all times that the goal is not to describe and evaluate those national practices in themselves, but to identify and analytically organize the many dimensions of contemporary amendment practice. In what follows, I will underline three points. First, I will emphasize that the book superbly charts the amplified contours of contemporary amendment practices, illuminating dimensions that had previously gone ignored, and providing a template for a truly global conversation on amendment. Second, I will underline that Albert has written a distinctively uncharged book in philosophical and political terms—an option that comes with costs, but that is probably crucial to its success in actually providing an entire roadmap, instead of trying to go deeper on some points at the risk of getting stuck and never completing the journey. Third, I will pause on some of the substantive theses that Albert nonetheless advances along the way, which generally reflect a sound disposition to avoid extremes and favor democracy-reinforcing solutions. I will identify, however, two internal tensions: one associated with the way he advocates for distinguishing dismemberments from amendments while rejecting unamendability as a bad idea, and the other associated with the slightly conflicting messages the book sends with regard to the ease and difficulty in constitutional reform. These tensions are, however, not so much a problem of the analysis but a sign of its ultimate success. There are tensions in the analysis because there are important tensions in contemporary amendment law and scholarship. As I will argue in closing, Albert’s effective roadmap reveals a landscape with a few wuthering heights, rendering vivid some of the arduous and consequential debates that are bound to shape the development of the law in this area. I. Processes, Products, and Practices: An Expanded Picture The book portrays amendment processes and results with the richness necessary to be fair to contemporary constitutional design and political practice, successfully providing the “roadmap for navigating the intellectual universe of constitutional amendment and . . . a blueprint for building and improving the rules of constitutional change” promised in the introduction.3 Chapters 3, 4, 5, and 6 build on Albert’s blueprint for conceptualizing amendment procedures. First, Albert shows that to make sense of our constitutional world it is necessary to speak both of codified and uncodified amendment rules. Some of the developments he presents under the rubric of uncodified rules were traditionally imagined as “incidents” in political dynamics, or as violations of amendment rules, but Albert’s recasting seems correct: it is more accurate to conceive them as part of the rules of change. With regard to written amendment procedures, we are provided a full basket of helpful notions: the distinction between single- and multitrack procedures, in combination with the inquiry focused on determining whether each track may be used to change all provisions or only some of them; the identification of “safe harbor” rules; the distinction between deliberation “floors” and “ceilings”; the identification of codified, interpretive, and constructive modalities of unamendability; the difference between inter- and intragenerational amendment. These contributions assemble the sort of capacious “intellectual universe” necessary to capture, guide, and evaluate constitutional practice. The most original contribution is, in my view, the section on amendment codification techniques, which Albert classifies into four models: appendative, disaggregative, integrative, and invisible. The study of the way these models operate in the United States, Canada, and Mexico demonstrates that this is an extremely consequential question, which powerfully impacts the extraction of constitutional meaning but is never given the smallest thought by drafters, interpreters, or the public at large. While Albert’s roadmap expands the confines of perception, it also helps us imagine how we could push them even further. One could complement the roadmap, for instance, by systematically charting the different modalities of judicial review intervention on amendment processes, or by pausing to illustrate the distinctive political salience of specific amendment stages—such as rounds of state ratification or referendums. The book provides useful tools to continue the charting, launch case studies, and generally venture into all sorts of underexplored “detours” in amendment practice. II. Self-standing, “Thin” Amendment Theory The most remarkable feature of the book is the way it keeps the theoretical and political discussion closely constrained. Echoing the familiar distinction in political theory between “thick” and “thin” theories—the latter being crafted to fulfill certain functions in situations where there are incompatible or only partially compatible comprehensive understandings of the same phenomena—we may call Albert’s theory a thin theory of amendment.4 Amendment theories typically associate any proposed reform with complex understandings about constituent power, democracy, constitutionalism, or legal validity. Albert’s book provides a conceptual frame that facilitates intercommunication and dialogue between these highly heterogeneous proposals. There are signs of “thinness” all along. Consider Chapter 1’s nomenclature. Although the title (“Why Amendment Rules?”) could have presaged a complicated discussion on democracy, constitutionalism and the nature of legal systems, the chapter more earthily explores a range of different “uses” of amendment, distinguishing between formal, functional, and symbolic uses. “Formal” could have been named functional, “functional” could have been named normative (or political), and “symbolic” could have been named identitarian—but at the risk of igniting high-voltage reactions or dispersing the reader’s attention down complex and divergent paths. Likewise, Albert presents a discussion of the authoritarian use of amendments, and of the efficacy of certain constitutions, as an exploration of “authenticity” in the symbolic use of amendment, thus keeping the temperature low.5 Another example is the analysis in Chapter 2 of the “boundaries” of amendment, which is actually a discussion of the concept of amendment itself. While Chapter 3, in view of U.S. practice, argues that amendments created by procedurally invalid means may be nonetheless amendments, Chapter 2 introduces the notion of procedurally regular amendments that are amendments only in name, building on an earlier idiosyncratic distinction between continuous and discontinuous constitutional change,6 to ultimately develop a “content-based” conception that differentiates amendments from dismemberments based on their “coherency” and “consistency” with the existing constitution.7 Later, he presents what he calls the “conventional theory of constitutional change,” which includes the idea that there are unconstitutional constitutional amendments that must be expelled from the system. Each of these questions is intertwined with extremely dense philosophical, political, and legal debates, yet are presented undramatically. The construction of this constitutional “grammar” goes a bit fast on two points. One is the question of the amendability or unamendabilty of amending rules. Major legal theorists have all tried to come to terms with this question, which is connected with the quite intractable debate on legal self-reference.8 Excepting his general view that unamendability is problematic, Albert contends that constitutions should be clear in stating that amendment rules are unamendable but does not otherwise emphasize the architectural importance of the issue.9 The second point concerns the theories used by courts to invalidate amendments, in connection with the previous question of whether it is justifiable that courts go about such review without a clear mandate to that effect. Albert writes in passing that the strongest justification for the practice is having courts counterweight a potentially unbridled amending power and refers to several modalities of review,10 but he does not particularly flag down the conceptual and practical difficulties involved in determining their scope, intensity, or in trying to separate procedural from substantive review. In any case, the book clearly succeeds overall at simultaneously signaling substantive complexity and keeping it in check. And while the strategy feels sometimes like wing clipping, it is probably the only way of fulfilling the book’s distinctive, mapping mission. III. Middle-Ground Substantive and Methodological Positions and Their Tensions For all the careful bridling of intractability in amendment debates, Albert’s intellectual map has nonetheless several inbuilt substantive positions. Two of them are, I argue, in tension. The first one has to do with the distinction between amendment and dismemberment, a core proposal of the book. Descriptively, it makes every sense: binarism has often proven inadequate to account for contemporary realities, and constitutional amendment does not seem to be an exception—the notion of “dismemberment” effectively contributes to identify intermediate realities that were previously not distinct. As mentioned, the primary difference between amendment and dismemberment is “scope,” and scope is content: big change versus small change; content that destroys the constitution versus content that merely modifies it, in different ways.11 In an associated normative twist, Albert argues that procedurally treating dismemberments like amendments is democratically problematic; yet despite the negative connotation of the word, his argument is not that dismemberments must be avoided, but rather that special procedures—more difficult than the ordinary—must be enacted to pass them.12 But this then enters into tension with Albert’s rejection of unamendability on democracy-based grounds, coupled with an appeal to an “inherent right” of the people to reinvention.13 The argument on which “unamendability scholars” justify the invalidation of amendments that destroy the identity of the constitution is, precisely, that certain changes can be effected democratically only by special means: by summoning the procedures necessary to enact a new constitution. Why are democracy-based arguments conclusive to justify special procedures to enact dismemberments but inconclusive to justify the sort of special procedures necessary to trigger the enactment of a new constitution? Any possible answer must rest on assumptions that are not provided. The second tension is associated with Albert’s defense of tiered amendment design. For Albert, a menu of tiered amendment options correlated with changes of different import is democratically superior to inserting eternity clauses in the constitution—a possibility he ultimately rejects as undemocratic. But this proposal is in tension with the analysis in Chapters 3 and 4 rejecting the possibility of saying something objective about degrees of amendment difficulty. The book seems to be recommending different degrees of amendment difficulty for different sorts of substantive changes just after having carefully shown that efforts to measure the degrees of difficulty ingrained in different design options are bound to fail. In my view, this contradiction arises because the discussion of rigidity measurement, surely prompted by its centrality in recent academic literature, inserts a strange body into the book—it is an empirically oriented implant into an analytical and normative-oriented body. Nowhere else is the book concerned with ascertaining, for instance, whether courts are actually capable of distinguishing changes that dismember the constitution from those that do not, or with pondering which methods may be helpful in ascertaining so. While it will always be relevant to inquire what results are empirically associated with different institutional solutions, the two things are conceptually different and the debate about how conceptual and normative proposals must be articulated with empirical findings is still very much pending. IV. The Daunting Future Albert describes and seemingly endorses a constitutional world of global theory and practice inhabited by real and fake amendments, unconstitutional pieces of constitutions, and courts that confidently separate crystals from mud in constitutional substance. Yet his procedurally oriented normative proposals suggest an ultimate, if still unarticulated, discomfort with at least some of the elements in this landscape. And happily so. In my view, both scholarship and legal practice in this area are trapped in the many difficulties implied in relying on a Schmittian conception of the constitution—now to be administered by apex courts, not by the President of the Reich. A Schmittian conception is inapt to ground core dimensions of contemporary practice, like procedural review of amendments, since, in the context of such a theory, the constitution is not authority and procedure, but fundamental decisions. Moreover, as history teaches, it lends itself to authoritarian uses as much as to democratic ones. While current practice under legalistic autocrats reveals the limitations of purely procedural paradigms of legitimacy, there is nothing in the hegemony of “material constitution” paradigms protecting us from courts and presidents using them to camouflage authoritarian projects. In letting us imagine Albert as an anti-Schmittian in disguise, the book thus crucially flags the urgency of searching for new, more nuanced, and probably nonbinary paradigms of legitimacy with regard to constitutional amendment. The book’s second internal tension also makes clear that we still must seriously discuss how to articulate empirical findings with proposals of institutional design—something that was less pressing when we simply lacked information about how designs perform. It is easy to say that normative proposals must be “empirically informed,” yet far harder to decide, in real design situations, what weight empirics must have in view of incomplete information, uncertainty about how noninstitutional factors will play out, and the existence of normative considerations calling for attention whatever the context. This ultimately reveals something important about the inner texture of comparative constitutional studies: although we are accustomed to navigating comparative matters in their profound interdisciplinarity, knowledge can sometimes be advanced only by combining inquiries that, individually, rest on distinctive methodological approaches, and we have no well-articulated metatheories as to how this combination must proceed when elaborating institutional recipes. In any case, among the broad range of distinctive approaches that are relevant to comparative constitutional matters, there must always be space for the sort of exercise this book brilliantly exemplifies: an exercise that identifies, names, distinguishes, classifies, reveals, and interrogates, generating the conceptual conditions for loose, amplified interdisciplinary interchange to become meaningful and productive conversation. Footnotes 1 Richard Albert, Constitutional Amendments: Making, Breaking and Changing Constitutions (2019). 2 Chapter 3, on measurements of amendment difficulty, contains a section on uncodified changes to amendment rules that—together with Chapter 4, on “varieties of unamendability”—could have been moved to Chapter 5, on the architecture of amendment processes. The normative discussion on “democracy and unamendability” in Chapter 5, for its part, might have been severed from the description of amendment architectures. 3 Albert, supra note 1, at 4. 4 See, e.g., Michael Walzer, Thick and Thin (1994); John Rawls, Political Liberalism (1993). 5 Albert, supra note 1, at 49–59. 6 Id. at 17. 7 Id. at 82. 8 See, e.g., Alf Ross, On Law and Justice (1953); Georg H. von Wright, Norm and Action (1963); Georg H. von Wright, On Self-reference and a Puzzle in Constitutional Law, 78 Mind 1 (1969); H.L.A. Hart, Essays in Jurisprudence and Philosophy 170–78 (1983); Carlos S. Nino, La validez del derecho (1985). For an assessment of this debate, see José Juan Moreso, Disposiciones de reforma constitucional, 10 Doxa 201 (1991). 9 Albert, supra note 1, at 202. 10 Id. at 222. 11 Albert lists four criteria of differentiation: subject, authority, scope, and purpose, but the only one doing real conceptual work is scope. Id. at 79–82. 12 Id. at 92. 13 Id. at 194–95. Author notes Associate Professor of Constitutional Law, Instituto Tecnológico Autónomo de México (ITAM, Mexico). I thank Richard Albert, my co-panelists Richard Kay, Mark Kende, Brian Ray, and our chair Ioanna Tourkochoriti for the benefits of an illuminating intellectual debate at the Annual Meeting of the American Society of Comparative Law, in Missouri in October 2019. © 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 13, 2021

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