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Constitutional Amendments Constitutional Amendments Making, Breaking, and Changing Constitutions RICHARD ALBERT 1 Constitutional Amendments. Richard Albert. © Oxford University Press 2019. Published 2019 by Oxford University Press. 3 Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide. Oxford is a registered trademark of Oxford University Press in the UK and certain other countries. Published in the United States of America by Oxford University Press 198 Madison Avenue, New York, NY 10016, United States of America. © Oxford University Press 2019 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, by license, or under terms agreed with the appropriate reproduction rights organization. Inquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above. You must not circulate this work in any other form and you must impose this same condition on any acquirer. Library of Congress Cataloging-i n- Publication Data Names: Albert, Richard, author. Title: Constitutional amendments : making, breaking, and changing constitutions / Richard Albert. Description: New York : Oxford University Press, 2019. | Includes bibliographical references and index. Identifiers: LCCN 2019002161 | ISBN 9780190640484 ((hardback) : alk. paper) Subjects: LCSH: Constitutional amendments. | Constitutional law. | Constitutions. Classification: LCC K3168 .A43 2019 | DDC 342.03—dc23 LC record available at https://lccn.loc.gov/2019002161 1 3 5 7 9 8 6 4 2 Printed by Sheridan Books, Inc., United States of America Note to Readers This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is based upon sources believed to be accurate and reliable and is intended to be current as of the time it was written. It is sold with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional services. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. 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Contents Acknowledgments ix Introduction— Uncharted Terrain in Constitutional Amendment 1 Scales of Change 4 The Routine and the Technical 4 Revolution and Renewal 6 The Range of Amendment Effects 8 Early Amendment Design 13 America’s First Constitution 13 Neither Amendment nor Constitution 14 The State Tradition in Constitutional Amendment 16 Defying Amendment Rules 18 Constitutional Moments and the Basic Structure Doctrine 19 The Constitution as an Incomplete Code 22 Legal Amendment or Illegitimate Violation? 24 The Content- Procedure Distinction in Amendment Review 27 The Road Ahead 30 PART ONE FORMS AND FUNCTIONS 1. Why Amendment Rules? 39 The Uses of Constitutional Amendment Rules 40 Formal 41 Functional 45 Symbolic 47 Authenticity in Amendment Design 49 Authoritarian Commandeering of Amendment Rules 50 Text and Reality 51 Amendment Values in Germany 52 Political Culture and Constitutional Commitment 58 2. The Boundaries of Constitutional Amendment 61 An Amendment in Name Alone 63 The Social State in Brazil 63 Provincial Secession in Canada 64 vi Contents Senate Reform in Ireland and Italy 66 The War on Japan’s Pacifist Constitution 67 Amendment or Constitution? 68 The Conventional Theory of Constitutional Change 69 Four Propositions 71 Constitutional Destruction and Reconstruction 73 Amendment and Dismemberment 76 A Content- Based Approach 78 The Four Fundamental Features of Amendment 79 The Two Thirteenth Amendments 82 Three Types of Dismemberment 84 PART TWO FLEXIBILITY AND RIGIDITY 3. Measuring Amendment Difficulty 95 Studies of Amendment Difficulty 98 Ranking Constitutions 98 Constitutional Rigidity 100 More Art than Science? 101 The Missing Case of Canada 105 The Most Difficult Constitution to Amend? 105 Alternative Amendment Procedures 107 Cultures of Amendment 110 Amendment Culture as Acceleration 112 Amendment Culture as Redirection 115 Amendment Culture as Incapacitation 116 Temporal Variability in Amendment Difficulty 119 Amendment Failure in the United States 119 Amending Article V 121 The Progressive Era of Constitutional Amendment 123 Another Progressive Era? 125 Uncodified Changes to Formal Amendment Rules 126 Three Causes of a Global Phenomenon 127 Statutory Conditions on Codified Amendment Rules 128 Popular Expectations in Constitutional Amendment 131 Judicial Interpretation of Amendment Procedures 133 The Limits of Codification 136 4. The Three Varieties of Unamendability 139 Codified Unamendability 140 Reassurance 141 Reconciliation 143 Preservation 144 Transformation 146 Contents vii Crisis Management 147 Settlement 148 Value Expression 148 Interpretive Unamendability 149 Continuity and Discontinuity 150 The Basic Structure Doctrine 151 Variations on the Basic Structure Doctrine 153 Conventions of Unamendability 156 Constructive Unamendability 158 The Equal Suffrage Clause 160 Constitutional Veneration 162 Omnibus Amendment Bills and Multi-P arty Incompatibility 165 Unamendability in Measuring Amendment Difficulty 169 PART THREE CREATION AND REFORM 5. The Architecture of Constitutional Amendment 175 Pathways and Possibilities 177 Single- Track and Multi-T rack Pathways 178 The Use of Amendment Pathways 182 Single- Subject Amendments 186 Codifying Procedures for Amendment and Dismemberment 188 Democracy and Unamendability 194 An Inherent Right 194 Constitution as an Action 195 A Democratic Requirement of Unamendability? 198 Alternatives to Codified Unamendability 201 Time and Change 202 Safe Harbors 203 Deliberation Requirements 204 Inter- Generational Ratification 205 Intra- Generational Ratification 207 Time and Brinkmanship 210 Time and Contemporaneity 213 Judicial Review of Constitutional Amendments 217 How a Court Becomes Supreme 218 Alternatives to Invalidation 222 Pre- Ratification Review in Canada 223 6. Finding Constitutional Amendments 229 Four Models of Codification 229 The Appendative Model 231 The Disaggregative Model 234 The Integrative Model 236 viii Contents The Invisible Model 238 The Problem of Obsolescence 240 Time and Social Change 241 Reimagining the U.S. Constitution 242 The Appendative Model in Society 244 The Problem of Harmonization 246 The Canadian Hybrid Model of Codification 246 Reconciling Constitution Acts 248 When to Harmonize 249 The Problem of Incorporation 250 The Politics of Codification in Mexico 251 Confusion and Disorder in Codification 253 Constitutional Veneration and the Appearance of Finality 254 Fidelity and Authority 257 Conclusion— The Rules of Law 261 A Blueprint for Amendment Design 262 Foundations 263 Pathways 265 Specifications 265 Codification 267 The Democratic Values of Constitutional Amendment 268 Notes 273 Index 323 Acknowledgments A few months before beginning my career at Boston College Law School, I received an unexpected email from Karen Breda, a librarian at the university who later became a good friend: “How can I help you in your research?,” she asked. By the time I arrived on campus, Karen had compiled one dozen binders of materials on constitutional amendment for me. Those readings formed the foundation for many of my early publications on the subject. I have been blessed by the support and encouragement of people like Karen everywhere I have been. At Boston College, my faculty colleagues welcomed me into the profession, helped me become a better scholar and teacher, and saved me from myself on more than one occasion. I thank in particular Bob Bloom, Kent Greenfield, Vlad Perju, Jim Repetti, Diane Ring, my deans John Garvey and Vince Rougeau, and our provost David Quigley. I constructed the core of this book while at Yale University in the 2015– 16 academic year as the Canadian Bicentennial Visiting Associate Professor of Political Science and Visiting Associate Professor of Law. I thank Bruce Ackerman, David R. Cameron, and Menaka Guruswamy for our many conversations and collaborations during my time in New Haven. I later tested and refined the ideas in this book as a visiting professor at the University of Toronto, the Externado University of Colombia, and the Interdisciplinary Center Herzliya in Israel. This book has benefited immeas- urably from discussions with colleagues at each of these great institutions. And now at the University of Texas at Austin, I have found inspiration in my colleagues in the Law School and the Department of Government— colleagues who together amount to the best group of scholars anywhere studying constitutionalism. I am grateful to Sandy Levinson for teaching me so much about constitutional amendment in his writings and our conversations, and to my dean Ward Farnsworth for making it possible for me to devote significant time to this manuscript. I have been supported at every turn, most notably by Trish Do, Sylvia Hendricks, and Jonathan Pratter.