–Richard Albert, Boston College Law School
Constitutional changes, both big and small, are underway in Egypt, Fiji, Tunisia and elsewhere. Constitutional designers in these and other countries face daunting challenges in dividing powers between governmental branches, balancing state prerogatives with individual rights, and managing majority-minority relations.
Constitutional designers should also be particularly attentive to their design of formal amendment rules, which John Burgess identified in 1891 as “the most important part of a constitution” and which Akhil Amar has more recently characterized as holding “unsurpassed importance, for these rules define the conditions under which all other constitutional norms may be legally displaced.”
Formal amendment rules serve many purposes. For example, formal amendment rules structure the formal amendment process. They also distinguish the constitution from ordinary law, precommit political actors to the choices of the constitution’s authors, and they offer a way to correct faults that develop over time and experience. They may also serve as an interbranch check. Scholars have attributed these and other important functions to formal amendment rules.
In a forthcoming paper in the McGill Law Journal, I illustrate that formal amendment rules serve an as-yet underappreciated function: to express constitutional values.
When constitutional designers wish to identify special political commitments in the text of the constitution, they may do so in several places.
First, they may identify them in the preamble, which as Sanford Levinson explains, sometimes reflects a “commitment to some scheme of universal values.” For instance, the French Constitution identifies liberty as a foundational value in its preamble.
Second, constitutional designers may identify these special commitments outside the preamble, as does the Spanish Constitution, which declares in the main constitutional text that Spain is founded in such values as freedom, justice equality and political pluralism.
Constitutional designers may also express constitutional values in their design of formal amendment rules. This is the focus of my paper.
For example, constitutional designers may entrench an escalating structure of formal amendment rules, as exhibited by the Canadian and South African Constitutions. Escalating amendment rules assign different amendment thresholds to specific constitutional provisions or powers, varying the degree of amendment difficulty according to the relative political salience of those provisions or powers.
Constitutional designers may also express constitutional values by entrenching subject-matter restrictions that are immune to formal amendment. These unamendable provisions effectively create two classes of constitutional provisions: those are that subject to formal amendment, and those that are exempted from formal amendment and therefore situated above other provisions as either more special, more politically sensitive, or more historically important. Unamendable provisions are common in constitutional texts, appearing in the German Basic Law, and the Brazilian and Italian Constitutions, to name just three.
Constitutional designers may also combine an escalating structure of formal amendment with subject-matter restrictions, as we see in the Ukrainian Constitution.
In addition to illustrating how formal amendment rules may express constitutional values, I also observe in the paper that the values constitutional designers entrench may reflect either actual or inauthentic political commitments. For instance, many constitutions, for instance the Constitutions of the Central African Republic and Chad, make fundamental rights and freedoms unamendable, thereby expressing their respect for human rights. Yet we know that both these two sham constitutions entrench these rights and freedoms largely for public relations purposes.
How then may we distinguish authentic from inauthentic expressions of constitutional values? This is the second question I explore in the paper, using Germany as an expositor of the thesis that we can evaluate the authenticity of the entrenchment of constitutional values in formal amendment rules by examining three things: the textual entrenchment of the values, the interpretation of those entrenched values by political actors, and the dissemination of those entrenched values in the larger political culture.
That formal amendment rules may express constitutional values is both a clarifying and complicating contribution to the study of formal amendment rules. It clarifies the study of formal amendment rules by showing that formal amendment rules may serve a function that scholars have yet to develop. Yet it complicates the study of formal amendment rules by showing that the constitutional text alone cannot prove whether the constitutional values expressed in formal amendment rules represent authentic or inauthentic political commitments.
Suggested Citation: Richard Albert, When Entrench Formal Amendment Rules?, Int’l J. Const. L. Blog, August 5, 2013, available at: http://www.iconnectblog.com/2013/08/why-entrench-formal-amendment-rules
 John Burgess, I Political Science and Comparative Constitutional Law 137 (1891).