Introduction: The forms and limits of constitutional amendments

The Author 2015. Oxford University Press and New York University School of Law. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com Introduction: The forms and limits of constitutional amendments Joel Colón-Ríos* There has been a recent explosion of academic commentary on the form and limits of constitutional amendments. This literature comes in various strands, some of which are driven by normative concerns about constitutional legitimacy, some of which focus on the effects of different types of amendment rules, and some of which examine the nature and legal status of the amending power. The articles contained in this symposium advance the state of knowledge on all those fronts. In this introduction, I provide a critical overview of these articles, placing special emphasis on the way they deal (or not) with the question of popular participation in constitutional change. 1. The state of knowledge on constitutional amendments Legal academics and political scientists have long been interested in the form and limits of constitutional amendments, but there has been a recent explosion of academic commentary on the subject. 1 One strand of this literature is driven by normative considerations about constitutional legitimacy. For example, some scholars argue that the degree of difficulty created by article V of the US Constitution has negative implications for the legitimacy of the constitutional order, particularly given that constitutional changes frequently occur through other means (the most common one being judicial interpretation). 2 Other scholars maintain that, while amendments should not be too difficult to achieve, the constitution-amending power cannot be legitimately used to negate the fundamental commitments of the constitutional regime: changes that negatively affect the constitution s core should be out of the scope of its amendment rule. 3 An important part of the literature is less explicitly concerned with constitutional legitimacy. For example, there is a body of scholarly work that examines the nature and legal status of the amending power, that compares judicial approaches to the * Senior Lecturer, Victoria University of Wellington. Email: joel.colon-rios@vuw.ac.nz. 1 Anything resembling a full list would be too long. For multiple examples, see the works cited in the articles that follow. 2 See, e.g., Sanford Levinson, Our Undemocratic Constitution (2006). 3 See, e.g., Walter Murphy, Constitutional Democracy: Creating and Maintaining a Just Political Order (2007). I CON (2015), Vol. 13 No. 3, 567 574 doi:10.1093/icon/mov045

568 I CON 13 (2015), 567 574 limits of constitutional change across multiple jurisdictions, and that addresses different questions about the design of amendment rules. 4 There are also scholars that have devoted a significant part of their work to empirical analysis of issues such as the frequency of constitutional change in different jurisdictions, or the effect of various types of amendment rules on constitutional rigidity. 5 Even if, as a matter of actual constitutional practice, the exercise of the constitution-amending power is relatively rare, it is no exaggeration to say that the state of knowledge about it, both from a comparative and theoretical perspective, has been growing exponentially since the end of the twentieth century. Take, for example, the doctrine of unconstitutional constitutional amendments. Not very long ago, the doctrine was seen, at best, as a curiosity present in a handful of foreign legal systems; at worst, as an incoherence. In fact, it was almost expected that academics analyzing this doctrine would begin their writings by noting the apparently mysterious character of the very idea that a constitutional amendment could be unconstitutional. 6 But those very scholars contributed to the creation of a valuable corpus of writings that explains the ways in which the doctrine has been applied by courts in different jurisdictions. In a similar way, the flourishing of comparative constitutional law has resulted in a rich body of literature examining, for instance, the ways in which different countries approach constitutional entrenchment or tier their amendment rules or the manner in which informal constitutional change occurs in different legal systems, and it has also produced impressive databases of the rules governing constitutional amendments around the globe. 7 The fortunate result of these developments is that, more than ever before, comparative constitutional lawyers are in the position of engaging in critical assessments of these institutions, as well as in informed and sophisticated recommendations for change. And this is exactly what the articles contained in this symposium do. There is, however, one aspect of the distinction between ordinary and constitutional change that, in my view, is frequently sidelined in the literature. This is the old idea that, while legislatures should have the power to adopt, change, and repeal ordinary statutes, any amendment of the fundamental laws should be made by the entire citizenry. 8 In other 4 See, e.g., Richard Albert, The Structure of Constitutional Amendment Rules, 49 Wake Forest L. Rev. 913 (2014); Carlos Bernal Pulido, Unconstitutional Constitutional amendments in the Case Study of Colombia: An Analysis of the Justification and Meaning of the Constitutional Replacement Doctrine, 11(2) Int l J. Const. L. 339 (2013). 5 See, e.g., Donald Lutz, Toward a Theory of Constitutional Amendment, 88(2) Am. Pol. Sci. Rev. 355 (1994); Zachary Elkins, Tom Ginsburg, & James Melton, The Endurance of National Constitutions (2009). 6 See, e.g., Gary Jacobsohn, An Unconstitutional Constitution? A Comparative Perspective, 4(3) Int l J. Const. L. 460, 460 (2006) ( Can a constitution be unconstitutional? In most countries this is not a question that is generally given serious consideration. We might also think the query slightly bizarre.... ); Yaniv Roznai, Unconstitutional Constitutional Amendments The Migration and Success of a Constitutional Idea, 61 Am. J. Comp. L. 657, 657 (2013) (abstract) ( Can a constitutional amendment be unconstitutional? Prima facie, this seems like a paradox. ). 7 See, e.g., Constitute (http://www.constituteproject.org), a collaborative project that involves Google and the Comparative Constitutions Project. 8 This tradition can be traced back at least to Marsilio de Padua and Johannes Althusius. Marsilius of Padua, The Defender of Peace 52 (Annabel Brett ed., trans., Cambridge University Press, 2005); Johannes Althusius, Politica 93 (Frederick S. Carney trans., Liberty Fund, 1995 [1614]). Since the eighteenth century, the same idea has been expressed through the distinction between the constituted powers of government, and the constituent power of the people.

Introduction: The forms and limits of constitutional amendments 569 words, that constitutional change is, among many other things, about heightened popular participation. Accordingly, in this introduction I provide a critical overview of the articles contained in this issue, placing special emphasis on the way in which they deal (or do not), with the question of popular participation. 2. Constitutional unamendability and constitutional rigidity The articles authored by Vicki Jackson and Tom Ginsburg address, using different methodological approaches, the question of constitutional rigidity. In her article entitled The (Myth of Un-)Amendability of the U.S. Constitution and the Democratic Component of Constitutionalism, Jackson critically examines an assumption shared by many comparative constitutional lawyers: that article V of the US Constitution makes formal alterations of that country s constitutional text almost impossible to achieve. Jackson challenges this view from two main fronts. First, she argues that, at an empirical level, claims about the impossibility (or near impossibility) of constitutional amendment in the US are overstated. Gaining a two-thirds majority in both Houses of Congress is difficult, but certainly not impossible (and, in fact, it is consistent with the amendment rules contained in many other constitutions). Moreover, history suggests that, once this initial hurdle has been overcome, the road toward amendment is not that hard: of the thirty-three amendments proposed by Congress, only six have failed to be ratified by the states. Second, she maintains that normative arguments against amendments, as well as overstated claims about their impossibility, may directly or indirectly contribute to the recent non-use of article V. It is possible, she writes, that belief in the near impossibility of amendment contributes to the US constitutional culture s disposition not to amend. 9 Such a belief, she says, is reinforced by normative arguments that the Constitution s text should not be tinkered with. 10 Jackson exemplifies the practical manifestation of those views with a discussion of the proposals advanced by groups that strongly disagreed with the US Supreme Court s decision in Citizens United v. Federal Election Commission. 11 Even though [o]ne might have thought this was an opportune moment to go to the people, through the amendment process, most political actors did not consider the constitutional amendment route viable either because they believed it is so unlikely to succeed and/or because they believe other approaches have normative advantages. 12 Jackson s assessment of the degree of constitutional rigidity created by article V, and her challenge to scholars that insist on the near-impossibility of formal amendment in the US, is powerful and persuasive. Her discussion about the relationship between 9 Vicki Jackson, The (Myth of Un-)Amendability of the US Constitution and the Democratic Component of Constitutionalism, 13(3) Int l J. Const. L. 575, 576 (2015). 10 Id. at 576. 11 558 U.S. 310 (2010). 12 Jackson, supra note 9, at 587.

570 I CON 13 (2015), 567 574 constitutional legitimacy and the possibility of amendments is also illuminating. She maintains that, [f]or a constitution to remain the legitimate product of we the people, amendment through actions in which the public participates and which are formalized through specific events of proposal and ratification has an important role to play. 13 I wonder, however, whether a more frequent use of article V would do enough to meet those demands. Article V, when compared to the amendment rules of other jurisdictions, provides very few opportunities for formal public participation: it is an amendment rule that for the most part places the amending power in the ordinary institutions of government (at federal and state levels). Perhaps the problem is not only the non-use of article V, but article V itself: popular participation through ordinary representatives, even if those representatives are subject to a number of supermajority requirements, might not be enough for a constitution to be really seen as a product of we the people. Now, if Jackson is correct that the apparent constitutional unamendability in the US cannot be attributed solely to the amendment rule, how are we to understand the nature and effects of the non-institutional factors that are contributing to it? Is this phenomenon also pervasive in other jurisdictions? Those are some of the questions that Tom Ginsburg and James Melton s article, entitled Does the Constitutional Amendment Rule Matter at All? Amendment Cultures and the Challenges of Measuring Amendment Difficulty, helps us answer. Most efforts at measuring amendment difficulty across a number of jurisdictions focus on things such as the number of actors involved in the amendment process or the type of majorities required by an amendment rule. Ginsburg and Melton convincingly show that those efforts have largely failed. The reason why that is so, they argue, might be that institutions are not the primary determinant of amendment rates. 14 It is therefore necessary for any attempt at measuring amendment difficulty to take into account what they call amendment culture, or the set of shared attitudes about the desirability of amendment, independent of the substantive issue under consideration and the degree of pressure for change. 15 In their empirical study, Ginsburg and Melton show that the concept of amendment culture does a better job of explaining observed patterns of amendment within constitutional systems than do any of the institutional indices or variables on offer. 16 In fact, they found that the only consistent predictor of amendment difficulty is amendment culture. The authors characterize this result as a bit depressing, 17 since it gives good reasons to conclude that there is little constitutional designers can do to influence a constitution s amendability. But perhaps the main role of amendment rules should have never been to influence the frequency of future constitutional changes (a role that Ginsburg and Melton show amendment rules are unable to fulfill). Perhaps these 13 Id. at 602 (emphasis in original). 14 Tom Ginsburg and James Melton, Does the Constitutional Amendment Rule Matter at All? Amendment Cultures and the Challenges of Measuring Amendment Difficulty, 13(3) Int l J. Const. L. 686, 712 (2015) (emphasis in original). 15 Id. at 699. 16 Id. at 687. 17 Id. at 711.

Introduction: The forms and limits of constitutional amendments 571 rules should have always been primarily seen as a mechanism through which citizens legitimize their constitution over time. If that is the case, constitutional designers should not see their task as that of creating an amendment rule that achieves a particular degree of amendability, but one that facilitates the greatest degree of popular deliberation and participation in constitutional change. 3. The limits of constitutional change Amendment rules, like all rules, can be subject to abuse. In particular, they may be used to produce changes that are ultra vires the amending power or that are outside the scope of a particular amendment procedure. The articles authored by Richard Albert, Mark Tushnet, and Rosalind Dixon and David Landau examine different manifestations of this problem. Albert, in his article on Amending Constitutional Amendment Rules, examines this issue from the perspective of self-amendment. How can a constitutional order protect its amendment rule against ordinary amendment? How can we ensure, for example, that political actors are unable to use the ordinary amendment process in order to legally bypass an eternity clause? Albert provides invaluable advice to constitutional designers and, in the process, engages in a comparative analysis that clarifies important aspects of the nature of the amending power. He begins by showing that the traditional ways of protecting amendment rules from ordinary amendment present problems of legitimacy or enforcement, and in any event are susceptible to circumvention. As a solution, he maintains that the protection of amendment rules should be guided by the principles of inter-temporality and relativity. These principles would counsel, first, a commitment to respecting the considered judgment of the community as expressed over a period of years and, second, a commitment to entrenching amendment rules under higher thresholds than other constitutional provisions. 18 Albert associates inter-temporality with a non-presentist account of democratic legitimacy that does not privilege the will of present majorities but that seeks to take into account the will of the governed over time. 19 The institutional implication of these two principles would be an amendment rule that includes various supermajority requirements, a considerable period of time between the initial proposal and final approval (Albert suggests five years), and a selfentrenchment provision. This seems like a sensible, and possibly effective, approach. One may ask, however, whether even a highly democratic constitution-maker would have the required authority to make the alteration of an amendment rule subject to a process that is probably much more demanding than the one followed when the constitution was adopted. It is not uncommon for amendment rules to include requirements that are more difficult to meet than those followed in the original constitution-making act, but a five-year period significantly limits the amending power of the present generation. A possible result might be that, faced with an extraordinary level of difficulty in 18 Richard Albert, Amending Constitutional Amendment Rules, 13(3) Int l J. Const. L. 655, 678 (2015). 19 Id. at 679.

572 I CON 13 (2015), 567 574 altering the amendment rule (whose content, for all we know, may be particularly unfair or antidemocratic), would-be amenders may turn towards full constitutional remaking through informal or illegal means. As the examples of Venezuela and Colombia show, such a course of action may prove particularly effective (and perhaps justifiably so), if the informal process of constitutional change presents itself as a more inclusive and participatory alternative than the type of amendment rule proposed by Albert. In his article, Peasants with Pitchforks, and Toilers with Twitter: Constitutional Revolutions and the Constituent Power, Tushnet illustrates this problem with the following example: If the people at time-one had the power to place the provision in the constitution and specify that it be unamendable, why should the people at time-two not have the power to amend the provision, through procedures that are functionally equivalent to those used by the people at time-one (even if inconsistent with the procedures the people at time-one specified for altering the constitution)? 20 Put in a different way, how can we know that the originary constituent power has been exercised? Tushnet argues that the originary constituent power is exercised every time an otherwise unconstitutional transformation of the constitutional order is successful (a judgment that can only be made retrospectively). Accordingly, an exercise of the originary constituent power may take place through the ordinary amendment rule or through extra-legal means. The decisive criterion is that it results in a constitutional revolution that successfully changes the behaviour of relevant legal actors. 21 This is a significant contribution to the theory of constituent power, one that allows us to reconceptualize in important ways the relationship between pouvoir constituant dérivé and pouvoir constituant originaire. It nevertheless carries a significant risk. If the definitive criterion for determining whether the originary constituent power has been exercised is the success of a constitutional revolution, the concept of constituent power is devoid of its democratic component. That is to say, there would be no particular reason why the exercise of the originary constituent power should take place through democratic procedures. Of course, popular involvement (either formal or informal) will usually be of great practical importance for the success of a constitutional revolution (as Tushnet s examples show), but it does not have to be. A revolutionary transformation of the constitutional order may very well change the behavior of the relevant legal officials while being opposed by the great majority of the constituent people. Notwithstanding the above, I think Tushnet is certainly right that if a revolutionary transformation of the constitutional order is successful, then an extra-legal constitution-making power has been exercised. Whether we want to call it an exercise of the originary constituent power (rather than, for example, a coup d état) is, after all, a different question. As suggested by Tushnet s analysis, the effectiveness of any attempt to make certain parts of a constitution unamendable is, in the last instance, a question 20 Mark Tushnet, Peasants with Pitchforks, and Toilers with Twitter: Constitutional Revolutions and the Constituent Power, 13(3) Int l J. Const. L. 639, 640 (2015). 21 Id. at 654.

Introduction: The forms and limits of constitutional amendments 573 of political power. This point is of particular importance with respect to the doctrine of unconstitutional constitutional amendments. That is to say, one would expect that the perceived legitimacy of a judicial invalidation of a constitutional amendment will have implications as to whether political actors would be successful in achieving the desired changes in violation of the legal order. In fact, the legitimacy of the doctrine itself is dubious at best. Why should unelected judges have the right to invalidate not only ordinary laws, but constitution-amending legislation as well? This is exacerbated by the fact that, as Dixon and Landau show in Transnational Constitutionalism and a Limited Doctrine of Unconstitutional Constitutional Amendment, the doctrine has often been used in circumstances where the meaning of constitutional norms is open to reasonable disagreement. 22 They maintain that an important part of the reason why the doctrine is frequently applied in that way may be that judges base their identification and understanding of the unamendable constitutional content on purely domestic considerations. This may lead, for instance, to mistaken conclusions about the importance of a specific arrangement for the existence of a democratic constitutional order and, consequently, to the judicial nullification of a constitutional amendment whose validity perhaps should have never been put into question. Dixon and Landau are thus interested in finding a way of preventing the doctrine s over-use, so that it can properly perform its main function: the invalidation of amendments that any reasonable observer would see as posing a substantial threat to the democratic order, regardless of their particular conception of democracy. 23 They argue that courts should refer to transnational constitutional law 24 in determining which values must be protected from the amending power, and in figuring out whether the proposed amendments actually threaten them. Judicial consideration of institutional practices across a number of jurisdictions may allow courts to see, for example, that even though a particular institution or practice has long formed part of their country s constitutional order, it is not truly necessary for the existence of democracy. If implemented, this proposal would certainly result in a more limited version of the doctrine, and alleviate some of the main concerns around its legitimacy. It nevertheless involves some risks. For instance, even if a process of comparison will more often than not allow judges to look beyond their own bias, it may be that transnational practices come accompanied with a structural bias against certain types of political organization that, while highly participatory, negate in important ways the constitutional forms present across the world s actually existing democracies. 4. Conclusion I have highlighted some of the main contributions made in the articles contained in this symposium and offered a number of critical comments. These latter comments 22 Rosalind Dixon and David Landau, Transnational Constitutionalism and a Limited Doctrine of Unconstitutional Constitutional Amendment, 13(3) Int l J. Const. L. 606, 622 (2015). 23 Id. at 628. 24 Id. at 623.

574 I CON 13 (2015), 567 574 approached the articles from the perspective of a participatory conception of constitutional change. In all cases, I think, a more direct engagement with the question of popular participation would have provided the authors with additional tools to further test some of the implications of their conclusions and proposals. That said, there is much more to learn from these articles than what I was able to convey in this brief introduction. As I am sure the reader will note, the richness of the authors arguments and the scope of their analyses, as well as the significance of the issues they raise, provide a good indication that the forms and limits of constitutional amendments will continue to be a major subject of scholarly inquiry for years to come.