The expressive function of constitutional amendment rules.

• Author: Albert, Richard
• Position: I. The Function of Constitutional Amendment Rules through II. Constitutional Values and Formal Amendment Rules, p. 225-257

The current scholarly focus on informal constitutional amendment has obscured the continuing relevance of formal amendment rules. In this article, I return our attention to formal amendment in order to show that formal amendment rules--not formal amendments but formal amendment rules themselves--perform an under-appreciated function: to express constitutional values. Drawing from national constitutions, in particular the Canadian, South African, German, and United States constitutions, I illustrate how constitutional designers may deploy formal amendment rules to create a formal constitutional hierarchy that reflects special political commitments. That formal amendment rules may express constitutional values is both a clarifying and a complicating contribution to their study. This thesis clarifies the study of formal amendment rules by showing that such rules may serve a function that scholars have yet to attribute to them; yet it complicates this study by indicating that the constitutional text alone cannot prove whether the constitutional values expressed in formal amendment rules represent authentic or inauthentic political commitments.

L'accent academique actuel sur l'amendement informel d'une constitution a obscurci la pertinence continue de la procedure formelle d'amendement. Dans cet article, je rapporte notre attention sur l'amendement formel pour montrer que la procedure formelle (non pas la modification, mais la procedure elle-meme) remplit un role sousevalue : l'expression des valeurs constitutionnelles. En m'appuyant sur des constitutions nationales, en particulier celles du Canada, de l'Afrique du Sud, de l'Allemagne et des Etats-Unis, je demontre que les auteurs inserent parfois des regles formelles d'amendement pour creer une formelle hierarchie qui reflete des engagements particuliers de nature politique. L'expression possible des valeurs constitutionnelles faite par des regles formelles d'amendement est une contribution qui clarifie et complique leur etude. Cette conclusion clarifie l'etude des regles formelles d'amendement en montrant que de telles regles peuvent servir a une fonction que les erudits n'y ont pas encore attribue. Cependant, elle complique cette etude en indiquant que le texte constitutionnel seul est incapable de prouver si les valeurs constitutionnelles exprimees dans les regles formelles d'amendement representent des engagements de nature politique, qu'ils soient authentiques ou inauthentiques.

Introduction I. The Functions of Constitutional Amendment Rules A. Why Entrench Formal Amendment Rules? B. Values in the Constitutional Text II. Constitutional Values and Formal Amendment Rules A. Creating a Constitutional Hierarchy B. Constitutional Values and Constitutional Hierarchy C. Constitutional Hierarchy in Formal Amendment Rules III. The Authenticity of Formal Entrenchment A. Purpose and Perception B. Designing Constitutional Values C. Interpreting Constitutional Values Conclusion Introduction

Formal constitutional amendment rules are largely corrective. Recognizing that a deficient constitution risks building error upon error until the only effective repair becomes revolution, (1) constitutional designers entrench formal amendment rules that can be used to peacefully correct the constitution's design. (2) Fixing defects is therefore an essential function of formal amendment rules. Political actors generally deploy formal amendment rules to "amend" a constitution--from the Latin verb "emendare"--in order to "free [it] from fault" or to "put [it] right." (3) Yet formal amendment rules do more than entrench a procedure for perfecting apparent imperfections in the written constitution: they may also serve the underappreciated function of expressing constitutional values.

Much of the current scholarship on constitutional amendment explores informal amendment. (4) This focus, while important, has obscured the continuing relevance of formal amendment rules. Consider formal and informal amendment practices in the United States. Today it is difficult, (5) if not virtually inconceivable, (6) to gather the supermajorities needed to formally amend the United States Constitution pursuant to Article V. (7) That there have been only twenty-seven textual additions to the Constitution since 1789--and of those, ten were packaged as the Bill of Rights--reveals just how rarely political actors have resorted to the constitution's formal amendment procedures. (8) Spurred by the difficulty of constitutional change through Article V, (9) political actors have innovated alternative methods to keep current the centuries-old constitution. (10) Today, informal amendment prevails so predominantly over formal amendment that Article V amendments have been described as irrelevant. (11) But while Article V amendments may perhaps be irrelevant, Article V itself is not.

Like other formal amendment rules, Article V entrenches special political commitments. We can discern from Article V's equal suffrage clause, as well as its reference to the importation (12) and census-based taxation (13) clauses, that federalism is an historically important constitutional value in the United States. Germany's formal amendment rules similarly reflect that state's constitutional values--specifically the value of human dignity, which is absolutely entrenched against formal amendment in the German Basic Law. (14) We may also look to the Canadian and South African constitutions for evidence that formal amendment rules express constitutional values. Much like the formal amendment rules in the United States Constitution and the German Basic Law, the design of these rules in the Canadian and South African constitutions is more than simply corrective. As I will show, (15) their formal amendment rules entrench a constitutional hierarchy that reflects a rank-ordering of constitutional values. (16)

In this article, I advance the scholarship on constitutional amendment by showing that formal amendment rules--not formal amendments, but the rules pursuant to which formal amendments themselves are made--express constitutional values. My thesis is neither that formal amendment rules always express constitutional values nor that designers necessarily intend formal amendment rules to serve this function. It is instead that formal amendment rules are one of the sites where constitutional designers may express a polity's constitutional values, both internally to the persons who are nominally or actually bound by its terms, and externally to the larger world. This article generates a research agenda for further inquiry into the use of formal amendment rules to express values.

This is a useful contribution to the study of formal amendment because it both clarifies and complicates their study. It clarifies it by demonstrating that formal amendment rules serve the underappreciated function of expressing constitutional values; yet it also complicates it by stressing that it is not always clear whether the constitutional values entrenched in formal amendment rules express authentic or inauthentic political commitments. This has important implications for constitutional design.

I begin, in Part I, by identifying and explaining the functions scholars have generally attributed to formal amendment rules; I show that none of these functions fully accounts for the expressive nature of formal amendment rules. In Part II, I draw from a number of national constitutions, including the constitutions of Canada and South Africa, to illustrate how formal amendment rules may entrench and express constitutional values by creating a formal constitutional hierarchy. Part III confronts an analytical difficulty: the values that constitutional designers choose to entrench in formal amendment rules may reflect either actual or inauthentic political commitments. Using the German Basic Law as a model, I explain how we may discern whether entrenched constitutional values represent authentic political commitments. I suggest that the authenticity of the constitutional values entrenched in Germany's formal amendment rules derives from their validation by the Constitutional Court, their centrality to German political culture, and their entrenchment in the Basic Law. I conclude with additional thoughts for deepening the comparative study of formal amendment rules.

1. The Functions of Constitutional Amendment Rules

   Few tasks in constitutional design are more important than structuring formal amendment rules. (17) Scholars have attributed several functions to formal amendment rules. Scholars generally understand these rules as managing political action and regulating constitutional change: "Amending formulas set up mechanisms that endeavor to tame constitutional actors and encapsulate the relationship between the constitution and the passage of time." (18) More specifically, formal amendment rules are said to distinguish a constitution from ordinary law, to structure the formal amendment process, to "precommit" (19) future political actors, and to facilitate improvements or corrections to the constitutional text. (20) They also heighten public awareness, check political branches, promote democracy, and pacify constitutional change. (21) Formal amendment rules do indeed serve each of these functions, as I will explain in this Part. But they should also be understood as one of several sites where constitutional designers may entrench and thereby express constitutional values. None of the functions scholars have attributed to them adequately reflects this expressive role.

   1. Why Entrench Formal Amendment Rules?

      First, as a basic matter, formal amendment rules distinguish constitutional text from ordinary legislation. Whereas laws are ordinarily subject to repeal or amendment by a simple legislative majority, a constitutional text is often subject to a higher threshold for alteration. (22) This higher threshold could be approval by a legislative or popular supermajority...