The expressive function of constitutional amendment rules.

AuthorAlbert, Richard
PositionIII. The Authenticity of Formal Entrenchment through Conclusion, with footnotes, p. 257-282
  1. The Authenticity of Formal Entrenchment

The values that constitutional designers choose to entrench in formal amendment rules may reflect either actual or inauthentic political commitments. Where constitutional designers entrench values in order to obscure contrary or ignoble political commitments, the disjunction between the constitutional text and political reality becomes problematic, both for the study of constitutional design and more immediately for those to whom the constitution applies. But to the extent that entrenched values accurately represent the intent or aspiration of constitutional designers, perception and reality mutually reinforce each other in the constitutional text's declaration of values. In this Part, I will illustrate how the purpose and perception of constitutions and formal amendment rules may diverge. I will also demonstrate how we can evaluate the authenticity of the constitutional values entrenched in formal amendment rules. As will become evident, the task is not an easy one, as it requires inquiry into text, law, and culture. My subject will be the German Basic Law, though the Canadian constitution could serve just as well. (150)

  1. Purpose and Perception

    Where constitutional designers entrench values in the constitutional text, we may consider these values authentic if the designers intended them to guide successor political and judicial actors in legislative and executive action and in judicial interpretation. On the other hand, where designers entrench values but neither have emotional vulnerability to them nor intend those values to influence successor actors, (151) we may presume that those entrenched values are inauthentic. This presumption may be rebutted with evidence that successor political and judicial actors have subsequently adopted these entrenched values as binding or guiding their conduct. The authenticity of entrenched values, however, is neither immediately nor entirely clear from a constitutional text.

    That written constitutions sometimes exhibit a disjunction between purpose and perception is a common critique of the study of formal constitutions. (152) As David Law and Mila Versteeg have conceded in their own work on formal constitutions, "[s]ome may object that formal constitutions are not worth studying because what is on paper does not necessarily translate into practice." (153) We need not look further than the Kremlin's 1936 Constitution of the Union of Soviet Socialist Republics to see just how widely political practice may diverge from the constitutional text. (154) For political theorist Benjamin Barber, the Soviet constitution was merely a smokescreen: although it appeared from its words to be "the world's most effusively rights-oriented constitution" in an "unprecedented fortress of human liberty," the truth was plainly the opposite. (155)

    This disjunction between purpose and perception is what Jan-Erik Lane calls the gulf between the formal written constitution and the real political constitution. (156) Lane acknowledges that no regime successfully fulfills the entirety of its written constitutional commitments, but that some do better than others: "No state lives one hundred per cent in accordance with its written documents." (157) It is the size of the gulf between the codified constitution and the political constitution that matters in assessing how well or poorly a regime measures up to its formally entrenched commitments. An authoritarian state would likely exhibit much greater dissonance between its written and political constitutions than a democratic one, which is more likely to aspire to harmonize the two. As Lane writes:

    [I]n dictatorships and authoritarian states there is typically a tremendous distance between the formal constitution and the real constitution. Often such states enact a constitutional document which has no connection whatsoever to institutional practices in the country. It is only a camouflage constitution. (158) David Law explains that camouflage constitutions serve a number of ulterior motives, including gaining credibility in the international community or securing foreign investment. (159)

    The problem, posits William Andrews, is that over the course of the nineteenth and twentieth centuries, written constitutionalism became synonymous with democracy. (160) "Documentary Constitutions," he writes, "have come to be identified with constitutionalism." (161) Authoritarian regimes have taken advantage of this positive identification, exploiting what Giovanni Sartori calls the "favorable emotive properties" of the word "constitution". (162) Sartori describes the phenomenon in greater detail:

    [T]he political exploitation and manipulation of language takes advantage of the fact that the emotive properties of a word survive--at times for a surprisingly long time--despite the fact that what the word denotes, i.e., the 'thing,' comes to be a completely different thing. (163) Equating constitutions with constitutionalism was and remains problematic because authoritarian regimes take advantage of that association to hide behind a strategically drafted democracy-embracing constitutional text that appears consistent with constitutionalism but really is only a facade. As Andrews explains, "many regimes in the world today have Constitutions without constitutionalism. Tyrants, whether individual or collective, find that Constitutions are convenient screens behind which they can dissimulate their despotism." (164)

    Formal amendment rules in constitutional texts are equally susceptible to authoritarian commandeering. Insofar as formal amendment rules reflect the usually unstated value of sovereignty, (165) the rules are a profitable and inexpensive site where authoritarian regimes may express inauthentic values while securing for themselves the goodwill that may come from their public, even if dishonest, association with democratic ideals. Examples abound of suspicious constitutional entrenchment. When we read the Russian Federation's constitution, which entrenches an escalating scale of formal amendment that makes it comparatively more difficult to amend civil and political rights, (166) we should therefore ask whether this special entrenchment actually expresses an authentic political commitment to protect these rights. This question should also arise when we read the Zambian constitution, which does the same with respect to its own fundamental rights and freedoms. (167) Similar questions may be asked of the formal amendment rules in Bangladesh, (168) Belarus, (169) Ethiopia, (170) or Singapore, (171) among many others. (172) The best answer is to always take a skeptical posture to any special or absolute entrenchment of constitutional values, and to evaluate whether the formally entrenched value aligns in reality with constitutional practice.

    One of the weaknesses of entrenching values in formal amendment rules therefore doubles as the biggest weakness of written constitutions: their democratic commitments on parchment sometimes conceal undemocratic practices in reality. (173) Walter Murphy cautions us against supposing that constitutions necessarily bind political actors, because "[t]o think that words can constrain power seems foolish." (174) Constitutional commitments, after all, are but words on paper--and to borrow again from Law and Versteeg, "sometimes, constitutions lie." (175) Law and Versteeg have shown that constitutions often promise more than they deliver, not only for illegitimate reasons associated with authoritarian regimes that find shelter under the cover of constitutionalism, but also for legitimate budgetary limitations that, despite good intentions, make it difficult to honour constitutionally entrenched socio-economic rights. (176) The former, however, are examples of "sham constitutions" because they knowingly and purposely fail to live up to the commitments they have publicly undertaken. (177)

    Some sham constitutions proclaim a commitment to human rights in their formal amendment rules, yet political actors do not conform their conduct to those commitments; such commitments therefore reflect an inauthentic expression of values. Although in these states, subject-matter restrictions purport to prohibit formal amendments to the human rights protections inscribed in their constitutions, political practice belies the textual respect for human rights. For instance, Afghanistan, Algeria, the Central African Republic, and Chad all entrench subject-matter restrictions on formal amendment to fundamental rights and freedoms, purporting to express the state's commitment to these rights. (178) But these four constitutional regimes appear in Law and Versteeg's "hall of shame", a list of the twenty-five worst sham constitutions that "combine far reaching promises with relative little respect for rights in practice." (179) These constitutional regimes benefit from the goodwill of the uninformed, who read the regimes' respective constitutional texts believing that the texts reflect reality.

    Another more recent example of an inauthentic expression of constitutional values is evident in the constitution of the Democratic Republic of the Congo. (180) Drafted by members of the current president's then-transitional government, (181) the constitution's formal amendment rules designate several matters--including republicanism, universal suffrage, and representative government--as formally unamendable, (182) and they prohibit formal amendments that have the effect of diminishing human rights and liberties. (183) We can suspect, however, that the Congo's governing political class is not truly committed to these values, (184) given the state's low ranking as an authoritarian regime in the Economist's Democracy Index. (185) That the governing class in the Democratic Republic of the Congo does not appear to conform its conduct to the values entrenched in the constitution's formal amendment rules suggests that it...

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