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BOSTON COLLEGE LAW SCHOOL
LEGAL STUDIES RESEARCH PAPER SERIES

RESEARCH PAPER 432

January 20, 2017

The State of the Art in Constitutional

Amendment (Introduction)

Richard Albert

Associate Professor
Boston College Law School
 Draft Introductory Chapter to
The Foundations and Traditions of Constitutional Amendment
(Richard Albert, Xenophon Contiades and Alkmene Fotiadou eds., Hart Publishing, 2017)

THE STATE OF THE ART IN CONSTITUTIONAL AMENDMENT

RICHARD ALBERT

In codified constitutions, amendment rules are the gatekeepers to the

constitutional text. They give political actors a roadmap to alter the constitution,1
they identify what is subject to or immune from change,2 they encourage public
deliberation on constitutional meaning,3 they foster stability by making the
constitution harder to change than regular legislation,4 and they make it possible to
make transformative constitutional changes without recourse to revolutionary
means.5 By their nature, the rules of constitutional amendment reflect both faith
and distrust in political actors: they authorize political actors to make alterations to
the constitution,6 just as they limit how and when political actors may do so.7 Given
the many essential functions served by constitutional amendment rules, we would
expect constitutions to entrench them, and indeed almost all of them do.

Yet the study of constitutional amendment has received little scholarly attention
in a regime-centric fashion that brings together comparative, doctrinal, historical,
and theoretical perspectives. Scholars have given significant attention to the study
of informal amendment,8 which we can define as the alteration of constitutional

Associate Professor and Nicholson Scholar, Boston College Law School. BA, JD (Yale); BCL
(Oxford); LLM (Harvard). Email: richard.albert@bc.edu.
1 Rosalind Dixon & Richard Holden, Constitutional Amendment Rules: The Denominator Problem,

in Tom Ginsburg (ed.), Comparative Constitutional Design (Cambridge: Cambridge University Press,
2012) 195 at 195.
2 Jon Elster, Ulysses Unbound: Studies in Rationality, Precommitment, and Constraints (Cambridge:

Cambridge University Press, 2000) at 101-04.

3 Raymond Ku, Consensus of the Governed: The Legitimacy of Constitutional Change, Fordham

Law Review, 64 (1995), 535 at 571.

4 Kathleen Sullivan, Constitutional Constancy: Why Congress Should Cure Itself of Amendment

Fever, Cardozo Law Review, 17 (1996), 691 at 695.

5 Walter Dellinger, The Legitimacy of Constitutional Change: Rethinking the Amendment Process,

Harvard Law Review, 97 (1983), 386 at 431.

6 Brannon P. Denning & John R. Vile, The Relevance of Constitutional Amendments: A Response to

David Strauss, Tulane Law Review, 77 (2002), 247 at 275.

7 Donald J. Boudreaux & A.C. Pritchard, Rewriting the Constitution: An Economic Analysis of the

Constitutional Amendment Process, Fordham Law Review, 62 (1993), 111 at 123-24.

8 See, e.g., Bruce Ackerman, We the PeopleVolume I: Foundations (Cambridge: Harvard University

Press, 1991); Bruce Ackerman, We the PeopleVolume II: Transformations (Cambridge: Harvard
University Press, 1998); Bruce Ackerman, We the PeopleVolume III: The Civil Rights Revolution
(Cambridge: Harvard University Press, 2014); Brannon P. Denning, Means to Amend: Theories of
Constitutional Change, Tennessee Law Review, 65 (1997), 155; Peter Oliver, Canada, Quebec, and
Constitutional Amendment, Toronto Law Journal, 49 (1999) 519; David A. Strauss, The
Irrelevance of Constitutional Amendments, Harvard Law Review, 114 (2001) 1457.

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 Draft Introductory Chapter to
The Foundations and Traditions of Constitutional Amendment
(Richard Albert, Xenophon Contiades and Alkmene Fotiadou eds., Hart Publishing, 2017)

meaning in the absence of textual change.9 But there has been a relative dearth of
inquiry into formal amendment itself as a field of study probing how its various
procedures interrelate with informal mechanisms of constitutional change. As
Sandy Levinson has suggested, this is both surprising and problematic because few
questions in the study and practice of constitutional design are more important
than how to structure the rules of constitutional amendment.10

There is of course more to constitutional amendment than procedures alone.

Zachary Elkins, Tom Ginsburg and James Melton have shown in their study of
constitutional endurance that the study of constitutional amendment offers a
window into the causes and consequences of constitutional stability and fragility.11
The study of constitutional amendment also raises foundational questions about the
legitimacy of the constitutional order, the locus of sovereignty in a jurisdiction,
whether we should understand formal amendment as part of a larger continuous
category of constitutional change and whether there is something special about a
popularly-legitimated process of altering the constitutional text.12 Moreover there
are deeply important normative implications to the chosen forms of constitutional
change, whether it occurs formally or informally, and whether it entails substantial
or minor changes to the constitution. In all cases, it is the constitution that changes,
and this entails consequences vastly different from changing an administrative
regulation, an ordinary statute, or a Supreme Court decision.

In recent years, scholars have produced creative scholarship in constitutional

amendment. They have asked what makes a constitution endure through crisis,13
they have explored unamendability in its various forms, whether formal,14
informal,15 or constructive,16 and they have taken critical approaches to the present-

9 Heather K. Gerken, The Hydraulics of Constitutional Reform: A Skeptical Response to Our

Undemocratic Constitution, Drake Law Review, 55 (2007), 925 at 929.
10 See Sanford Levinson, Designing an Amendment Process in John Ferejohn, Jack N. Rakove &

Jonathan Riley (eds.), Constitutional Culture and Democratic Rule (Cambridge: Cambridge
University Press, 2001) 271 at 275.
11 Zachary Elkins, Tom Ginsburg & James Melton, The Endurance of National Constitutions

(Cambridge: Cambridge University Press, 2009) at 99-100.

12 Richard Albert, Nonconstitutional Amendments, Canadian Journal of Law & Jurisprudence, 22

(2009) 5 at 9-10.
13 See Xenophon Contiades & Alkmene Fotiadou, On Resilience of Constitutions: What Makes

Constitutions Resistant to External Shocks?, Vienna Journal of International Constitutional Law, 9

(2015) 3.
14 See Melissa Schwartzberg, Democracy and Legal Change (Cambridge: Cambridge University

Press, 2007).
15 See Sudhir Krishnaswamy, Democracy and Constitutionalism in India: A Study of the Basic

Structure Doctrine (New Delhi: Oxford University Press, 2009).

16 See Richard Albert, Constructive Unamendability in Canada and the United States, Supreme

Court Law Review (2d), 67 (2014) 181.

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The Foundations and Traditions of Constitutional Amendment
(Richard Albert, Xenophon Contiades and Alkmene Fotiadou eds., Hart Publishing, 2017)

day implications of constitutional amendment rules.17 Scholars have also probed

some of the major questions in constitutional change confronting constitutional
designers, including the challenges of abusive constitutionalism,18 temporary
constitutions,19 and stealth authoritarianism.20 This field of study is now thriving.

Defining the Field

There is, with good reason, growing interest in the field of constitutional
amendment from a comparative perspective. Comparative constitutional
amendment is the study of how constitutions change through formal and informal
means, including alteration, revision, evolution, interpretation, replacement and
revolution. The field invites scholars to draw insights about constitutional change
across borders and cultures, to uncover the motivations behind constitutional
change, to theorize best practices, and to identify the theoretical underpinnings of
constitutional change. This volume is designed to guide the emergence of
comparative constitutional amendment as a distinct field of study in public law.
Much of the recent scholarship in the field has been written by the scholars
assembled in this volume. This book, like the field it hopes to shape, is not
comparative alone; it is also doctrinal, historical and theoretical, and therefore
offers a multiplicity of perspectives on a subject about which much remains to be
written. No other book to date has covered the ground we do here.

There are currently three major volumes in the field, but none has accomplished
what we hope we have in this collection. The first major volume is edited by
Xenophon Contiades,21 and the second by Dawn Oliver and Carlo Fusaro.22 Both
volumes gather country experts to describe constitutional change in specific
jurisdictions. Their coverage of the world is impressive and useful, and each book
has become a must-read for anyone in the field. This new volume builds on both by
offering a broad range of cross-jurisdictional perspectives and a theoretical analysis
of the various foundations and traditions of constitutional change. The third major
book in the field, edited by Sanford Levinson, is largely internal to the United

17 See Yaniv Roznai & Silvia Suteu, The Eternal Territory? The Crimean Crisis and Ukraines
Territorial Integrity as an Unamendable Constitutional Principle, German Law Journal, 16 (2015)
542.
18 David Landau, Abusive Constitutionalism, U.C. Davis Law Review, 47 (2013) 189.
19 Ozan O. Varol, Temporary Constitutions, California Law Review, 102 (2014) 409.
20 Ozan O. Varol, Stealth Authoritarianism, Iowa Law Review, 100 (2015) 1673; Gordon M. Hahn,

Managed Democracy? Building Stealth Authoritarianism in St. Petersburg, Demokratizatsiya, 12

(2004) 195.
21 Xenophon Contiades (ed.), Engineering Constitutional Change: A Comparative Perspective on

Europe, Canada and the USA (New York: Routledge, 2013).

22 Dawn Oliver & Carlo Fusaro (eds.), How Constitutions Change: A Comparative Study (Portland:

Hart Publishing, 2011).

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 Draft Introductory Chapter to
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States.23 It too is a must-read for the richness of its engagement with the theoretical
underpinnings of constitutional amendment. The comparative, doctrinal, historical
and theoretical approaches taken in this volume give readers a broader orientation
to the complexity of constitutional change across the globe.

The authors in this collection take a contextual approach to the study of

constitutional amendment. Our principal objective is to introduce comparative
constitutional amendment as a coherent field of study. The field has been gradually
developing into a distinct area in public law. Both at the national level and from a
comparative angle, there is an emerging set of related questions in constitutional
change inquiring into the promise and peril of codifying constitutions, the meaning
and formation of constitutional identity, and the purpose of constitutionalism itself.
Much of the innovative dialogue currently ongoing in the field is driven by
comparative perspectives on these questions and controversies. We hope to present
the major lines of inquiry and to suggest new ones for the years ahead.

We aim in this volume to create a reference point for scholars interested in the
subject. The volume covers the major topics where innovative work is being done,
including the contested notion of the people and the conventional divide between
the constituent and constituted powers, empirical quantitative approaches to
constitutional change, the forms and challenges of formal and informal
unamendability, the design and limits of temporally-bound amendment rules,
constitutional referenda and the inevitable impermanence of constitutional change.
We have designed the volume as a dialogue that cuts across these innovative
conceptualizations, highlights scholarly disagreement and, in so doing, puts big
ideas to the test. The volume therefore captures the fierce ongoing debates on the
frontier topics, it reveals the current trends and contested questions, and it tests a
variety of arguments elaborated by experts in the field. Our main objective for this
volume is to chart a path for rigorous study and constructive dialogue in the field.

The Architecture of Constitutional Amendment Rules

The study of constitutional amendment must begin with the way codified
constitutions are actually altered. The idea of formal amendment is American in its
origins. Lester Orfield long ago taught us that [t]he idea of amending the organic
instrument of a state is peculiarly American.24 State constitutions in the United
States entrenched formal amendment rules of their own. One of the earliest
national constitutions in the modern era, if not the first, to entrench a formal
amendment rule is the Articles of Confederation, Americas first constitution.

23 Sanford Levinson (ed.), Responding to Imperfection: The Theory and Practice of Constitutional
Change (Princeton: Princeton University Press, 1995).
24 Lester Bernhardt Orfield, The Amending of the Federal Constitution (Ann Arbor: University of

Michigan Press, 1942) at 1.

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The Foundations and Traditions of Constitutional Amendment
(Richard Albert, Xenophon Contiades and Alkmene Fotiadou eds., Hart Publishing, 2017)

Adopted in 1777, the Articles did not make amendment easy. It required approval
from the unicameral Continental Congress along with the unanimous agreement of
the thirteen states in order to alter its text, no small feat for any federal state:

And the Articles of this Confederation shall be inviolably observed by

every State, and the Union shall be perpetual; nor shall any alteration
at any time hereafter be made in any of them; unless such alteration
be agreed to in a Congress of the United States, and be afterwards
confirmed by the legislatures of every State.25

Amending the Articles was extraordinarily difficult, so much so that each proposal
failed.26 There predictably came a point in time when some constitutional change
became necessary for the improvement of the Union if not for its survival. Yet
instead of abiding by the impenetrable unanimity rule in the Articles, the
Philadelphia Convention that had been assembled for the sole and express purpose
of revising the Articles of Confederation27 decided to cast aside the constraints in
the Articles and instead to propose an altogether new constitution, this one with a
lower yet still considerably difficult amendment threshold: approval from two-thirds
of the bicameral legislature and agreement from three-quarters of the states. This is
the amendment rule that now entrenches the United States Constitution.28

It was risky for the Philadelphia Convention to propose a new constitution. They
were arguably violating the rules of the Articles by ignoring its own rules of change.
Further, the test they imposed for the ratification of the new constitution was a
high bar to clear: The Ratification of the Conventions of nine States, shall be
sufficient for the Establishment of this Constitution between the States so ratifying
the Same.29 The outcome was far from guaranteed; securing the agreement of nine
out of thirteen states took sustained advocacy and action. The Philadelphia
Convention believed that the ratification of the Constitution in nine irregular
assemblies of citizensthe Conventions of nine Stateswould retrospectively
legitimate their contested choice to break with the rules of change in the Articles.30

The puzzle was how to ground the new Constitution in an authority higher than
the Articles. The Articles possessed authority as a matter of law and also
functionally in that they brought stability to the Union, if even to the point of stasis.

25 Articles of Confederation, art. XIII (1781).

26 Benjamin Fletcher Wright, Consensus and Continuity1776-1878 Boston University Law
Review, 38 (1958) at 1 at 19.
27 Journals of the Continental Congress, 1774-1789, Feb. 21, 1787 (Washington C. Ford et al., 1904-

37) at 74.
28 U.S. Constitution, art. V (1789).
29 Id. at art. VII.
30 Bruce Ackerman, We The PeopleVolume 2: Transformations (Cambridge: Harvard University

Press, 1998) at 85.

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The bridge from discarding the Articles to adopting the new Constitution was the
convention, a revolutionary gathering of people in collective debate, deliberation
and decisionmaking. If the people could make an informed choice to discard the
Articles and to simultaneously accept the new Constitution, the formalist argument
of the illegality of the new Constitution would lose its moral force. Jack Rakove put
its well: the Philadelphia Convention understood that a constitution adopted
through some process of popular ratification could be said to have attained a
superior authority than what the Articles could claim from its own ratification.31
The successful ratification of the new Constitution gave it an unassailable
legitimacy: it became regarded as the product of a process in which the ultimate
source of legitimacy, the sovereignty of the people, was expressed as fully and as
clearly as the accepted political beliefs and institutions of the time allowed.32

The reason why the idea of a convention could bring legitimacy to the proposed
Constitution and to the Philadelphia Conventions decision to violate the Articles
highlights the first major subject of the volumea subject that doubles as the
architectural foundation of constitutional amendment rules: the constituent power.
The theory of constituent power derives from Emmanuel Joeph Sieys, an
eighteenth century French theorist who argued that the people were the fountain of
legitimate authority.33 Sieys distinguished the pouvour constituant from the
pouvoir constitu,34 the former referring to the people themselves acting in their
constitution-making capacity and the latter to the institutions the people create
institutions that are authorized only to change the constitution within the
constitutional framework created by the people themselves. On this theory, the
people of the United States acting deliberatively in state conventions across the
Union exercised their constituent power to adopt the new Constitution and in so
doing to legitimate the formally illegal break with the Articles.

The theory of constituent power is not a legal concept but rather a sociological
one. Yet it has been interpreted to entail implications in law for whether courts
should have the power to declare constitutional amendments unconstitutional, for
how we can identify the mystical body that is the people, and for how to
differentiate constitution-making as a form of constitutional alteration from
constitutional amendment. The constituent power features centrally in each of the
chapters in Part I of this volumea part we call The Foundations and Traditions of
Constitutional Amendmentwritten separately by Juliano Benvindo, Joshua

31 Jack Rakove, Constitutional Problematics, circa 1787, in John Ferejohn et al. (eds.),
Constitutional Culture and Democratic Rule (Cambridge: Cambridge University Press, 2001) 41 at
65.
32 Richard S. Kay, The Illegality of the Constitution, Constitutional Commentary, 4 (1987) 57 at 75.
33 Emmanuel Joseph Sieys, Quest-ce que le Tiers tat? (Paris: ditions du Boucher, 2002) (originally

published in 1789).
34 Id. at 53.

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(Richard Albert, Xenophon Contiades and Alkmene Fotiadou eds., Hart Publishing, 2017)

Braver, Oran Doyle, Luisa Fernanda Garca Lpez, Zoran Oklopcic, Thomaz
Pereira, Yaniv Roznai and Mark Tushnet.

Some constitutions seek self-consciously to constitutionalize the constituent

power. They will, for example, create two separate tracks of rules for formal
alteration: procedures that authorize constitutional amendment consistent with the
existing framework and presuppositions of the constitution and alternative
procedures that authorize total replacement whether or not the changes cohere with
the constitution as it exists and is presently interpreted. The Costa Rican
Constitution, for example, creates separate rules for partial amendment and
general amendment,35 the first set deployable within exacting specifications that
endeavor to ensure that the result will be an amended constitution that fits with
the existing constitution and the second set useable for all manner of changes,
including those that depart from and even violate the existing constitution. In the
conventional theory of constitutional change, use of the former procedures would
amount to an exercise of an inferior constituted power while use of the latter would
reflect the peoples marshalling of their superior constituent power. The
Constitutions of Austria, Spain and Switzerland are structured in a similar way.36

Yet whether a constitution self-consciously entrenches these two separate tracks

of procedures for formal alteration, the conventional theory insists that they exist
implicitly such that the inferior constituent power cannot be used to replace the
constitution. This was the Indian Supreme Courts justification for the basic
structure doctrine, which the Court created to invalidate constitutional
amendments that, in its view, created a new constitution without invoking the
constitution-making power that only the constituent power can authorize.37 It is
also the basis for the Colombia Constitutional Courts substitution of the
constitution doctrine,38 an analytical framework whose aspirations are substantially
similar to the basic structure doctrine, specifically to protect the Constitution from
its replacement by amendment rules rather than the rules of replacement.
Colombia and India are today the leading sites for the study of unconstitutional
constitutional amendment, though many courts around the world have taken to the
idea that they can invalidate a constitutional amendment that just goes too far.39

35 Constitution of Costa Rica, art. 195-96 (1949).

36 See Constitution of Austria, art. 44 (1920); Constitution of Spain, arts. 192-95 (1978); Constitution
of Switzerland, art. 192 (1999).
37 See Sudhir Krishnaswamy, Democracy and Constitutionalism in India: A Study of the Basic

Structure Doctrine (New Delhi: Oxford University Press, 2010).

38 Carlos Bernal, Unconstitutional Constitutional Amendments in the Case Study of Colombia: An

Analysis of the Justification and Meaning of the Constitutional Replacement Doctrine, International
Journal of Constitutional Law, 11 (2013), 339.
39 See Aharon Barak, Unconstitutional Constitutional Amendments, Israel Law Review, 44 (2011),

321.

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Unamendability

For some, the idea of an unconstitutional constitutional amendment is

problematic from a democratic perspective.40 It seems contrary to the very idea of a
constitutionwhich ought to reflect the views and wishes of those bound by itthat
there could be enforceable limits to what the people may do acting through their
representatives when they amend their constitution in perfect conformity with the
entrenched procedures for constitutional change. The question becomes one of
institutional competence where a court identifies those limits to the amendment
power against the backdrop of a codified constitution that in its own text makes no
mention of such limits. The Courts judgment about what is or is not unamendable
cannot help but be rooted in the political philosophy of its individual members.
Would this line-drawing be better assigned to a legislature than a court?

The calculation may change where the constitution entrenches a formally

unamendable provision. Constitutions often make principles, structures, and
symbols impervious to formal amendment by removing them from the sphere of
amendable provisions. For example, republicanism,41 democracy,42 federalism,43 the
separation of powers,44 and secularism45 are often made unamendable, as are
rights and freedoms,46 pluralism,47 national borders,48 and even national flags.49
Constitutional designers may have many reasons to adopt formal unamendability
as a feature of their constitution, whether to formalize a bargain or to preserve a
founding norm, to transform the state or to reconcile previously warring groups, or
quite simply to express a constitutional value, whether authentic or not.50 Whatever
the motivation for making a provision formally unamendable, it will be necessary to
interpret the scope of its formal unamendability against any set of facts that arise.
Here, the case may be stronger for a judicial role on the front lines of enforcing
unamendability because the task is squarely within the judicial competence of
constitutional interpretation. But interpreting what within the four corners of the
codified constitution is unamendable where its text identifies nothing as formally

40 See Joel Coln-Ros, Weak Constitutionalism: Democratic Legitimacy and the Question of
Constituent Power (Abington: Routledge, 2012); Richard Albert, Constitutional Handcuffs, Arizona
State Law Journal, 42 (2010), 663.
41 See Constitution of Italy, art. 139 (1948).
42 See Basic Law of Germany, arts. 20, 79 (1949).
43 See Constitution of Brazil, art. 60 (1988).
44 See Constitution of Greece, art. 110 (1975).
45 See Constitution of Turkey, art. 4 (1982).
46 See Constitution of Namibia, art. 131 (1998).
47 See Constitution of Portugal, art. 288 (1976).
48 See Constitution of Cameroon, art. 64 (1972).
49 See Constitution of Timor-Leste, art. 156 (2002).
50 Richard Albert, The Unamendable Core of the United States Constitution, in Andrs Koltay

(ed.), Comparative Perspectives on the Fundamental Freedom of Expression (Budapest: Wolters

Kluwer Ltd., 2015) 13 at 15-19.

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unamendable is a qualitatively different kind of undertaking, one that appears to be

closer to the task of constitution-making than constitutional interpretation.

Yet formal unamendability does not obviate the question whether a legislature
may be better positioned than a court to enforce the unamendable provision. The
Norwegian Constitution, for instance, entrenches a formally unamendable provision
yet nonetheless assigns to the legislature the power to protect the contours and
content of the provision.51 Whatever the constitution entrenches against
amendment and whoever assumes the responsibility to protect it from violation, the
very fact that constitutional designers chose to make one or more items
unamendable tells us a lot about the constitution and its essential values.

The Operation of Constitutional Amendment

One of the first building blocks in the procedures of constitutional amendment is

the power to initiate a constitutional amendment. Designing the power to initiate is
a binary choice. One option is to restrict the power to a single actor. In Germany, for
instance, only the national legislature may initiate an amendment: the Basic Law is
amendable only by two-thirds approval in each of the Bundestag and the
Bundesrat.52 The power of initiation may alternatively be held by multiple actors,
as in Canada, where three of its five amendment procedures may be initiated by
either the national legislature or any of the subnational legislatures.53 The Spanish
Constitution likewise assigns the power of initiation to several actors, including the
government, the national legislature, and the countrys autonomous communities
indirectly through their legislatures.54

Related to but distinct from the power of initiation is the scope of the procedures
available to political actors to amend the constitution. Some constitutions provide
one or more avenues to amend all of the amendable parts of the text while others
entrench multiple procedures that are expressly designated for use in relation to a
limited category of amendable matters. We may identify these as either
comprehensive or restricted in scope. In Japan, for example, the Constitution
entrenches only one comprehensive amendment procedure that may be used to
amend all of the amendable parts of the text: in order to pass a valid amendment,
the bicameral national legislature must approve an amendment proposal by a two-
thirds supermajority, the proposal must then be approved in a national referendum
by a simple majority vote, and the Emperor must then promulgate amendment.55 In
France the Constitution entrenches multiple comprehensive procedures that may be

51 See Constitution of Norway, art. 121 (1814).

52 See Basic Law of Germany, art. 79.
53 See Constitution Act, 1982, being Schedule B to the Canada Act, 1982, ss. 38, 41, 43, 46 (U.K.)
54 See Constitution of Spain, art. 166 (1978).
55 See Constitution of Japan, art. 96 (1947).

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used to amend all the amendable parts of the text: in order to pass a valid
amendment, the President or any member of the national legislature may propose
an amendment, and both houses of the legislature must then approve the proposal
before it must go before the people in a referendum for their approval.56

But elsewhere, as in South Africa, the Constitution creates three procedures of

formal amendment, and each is deployable only to amend certain provisions or
principles.57 One procedure requires approval from three-quarters of the National
Assembly and two-thirds of the National Council of Provinces in order to amend the
Constitutions declaration of constitutional values and the formal amendment rules
themselves.58 Another procedure requires two-thirds approval in each of the
National Assembly and the National Council of Provinces to amend the Bill of
Rights and provincial rights, prerogatives and matters.59 The third and final
procedure requires two-thirds approval in the National Assembly; this procedure
must be used to amend all other items in the Constitution.60 Each of these three
South African amendment procedures is restricted in scope, in contrast to the
comprehensive scope of the Japanese and French amendment procedures.

There may be good reason to entrench multiple procedures for amendment, be

they comprehensive or restricted in scope. In constitutional democracies where the
text is difficult to amend, it may be wise to offer political actors many routes to
formal amendment so as to avoid the possibility that the text becomes frozen and
unchangeable despite mounting political and popular will to update it. In the
United States, for instance, all routes of formal amendment pass through the
Congress. Under Article V, two-thirds of both houses of Congress may propose an
amendment, and to be valid three-quarters of the states must ratify it in either a
legislative vote or a convention, the choice being up to Congress; alternatively, two-
thirds of the states may petition Congress to call a convention to propose one or
more amendments, and in order to be valid three-quarters of the states must ratify
it or them either in a legislative vote or a convention, and again the choice is up to
Congress.61 In all of these four procedures, Congress plays a gatekeeping role. In an
age of congressional division and dysfunction, the requirement to assemble the
required congressional majorities becomes a serious impediment to an amendment.
Today, for example, it appears unlikely that any amendment could be proposed by

56 See Constitution of France, art. 89 (1958). The President may bypass the referendum requirement
for a governmental amendment bill. In these cases, Parliament convened in Congress must ratify the
proposal by a three-fifths majority vote. Id.
57 See Constitution of South Africa, s. 74 (1996).
58 Id.
59 Id.
60 Id.
61 Constitution of the United States, art. V.

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the divided Congress even though it could be ratifiable by a supermajority of states.

A non-congressional track to amendment could perhaps make amendment possible.

Returning to the basic building block of constitutional amendment procedures,

constitutions sometimes disable the power to initiate an amendment. It may be
disabled during periods of national emergency, martial law or a state of siege or
war. The Estonian Constitution illustrates how: an amendment of the Constitution
shall not be initiated, nor shall the Constitution be amended, during a state of
emergency or a state of war.62 The same applies for periods of regency or
succession. When the ruling monarch is absent or otherwise unable to serve, some
constitutions might forbid their amendment, as in Luxembourg where the
Constitution declares that during a regency, no change can be made to the
Constitution concerning the constitutional prerogatives of the Grand Duke, his
status as well as the order of succession.63 The Belgian Constitution is similar.64

There may also be temporal restrictions on the power to initiate a constitutional

amendment. Some constitutions require political actors to deliberate on an
amendment proposal for a maximum amount of time. We see this in the Costa
Rican Constitution.65 Other constitutions, like the South Korean Constitution,66
impose a minimum amount of time during which political actors must deliberate on
a constitutional amendment. Constitutional amendment procedures may also be
disabled in the period following a successful or failed amendment, as in Greece,67
and in the period immediately following the adoption of a new constitution, as in
Cape Verde.68 The use and manipulation of time and contingency in the design of
constitutional amendment rules is a fascinating subject that deserves more
scholarly attentionand in this collection Sofia Ranchords explores the subject in
the context of sunrise clauses that few others have analyzed so thoroughly.69

Another important device in the operation of formal amendment rules is the

referendum. Whether entrenched in the rules of formal amendment themselves or
used as a political imperative as a supplement to them, referenda are often viewed
as a legitimating procedure without peer in constitutional democracies.70 In recent

62 Constitution of Estonia, s. 161 (1992).

63 Constitution of Luxembourg, art. 115 (1868).
64 Constitution of Belgium, art. 197 (1831).
65 See Constitution of Costa Rica, art. 195 (1949).
66 See Constitution of South Korea, art. 129 (1948).
67 See Constitution of Greece, art. 110 (1975).
68 See Constitution of Cape Verde, art. 309 (1980).
69 For a detailed study of the related subject of constitutional sunset clauses, see Sofia Ranchords,

Constitutional Sunsets and Experimental Legislation: A Comparative Perspective (Cheltenham:

Edward Elgar Publishing Ltd., 2015).
70 For the best modern study of referenda, see Stephen Tierney, Constitutional Referendums: The

Theory and Practice of Republican Deliberation (Oxford: Oxford University Press, 2012).

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years, we have seen what seems like a proliferation of referenda with significant
consequences for rights and liberties, and also for fundamental constitutional
structures and arrangements. Think of the Brexit referendum in the United
Kingdom in 2016, the Peace Process referendum in Colombia in the same year, the
Scottish independence referendum in 2014, and the marriage and Senate referenda
in Ireland in 2015 and 2013, respectively. A referendum may in the years ahead
become by default a requisite part of constitutional amendment procedures whether
or not the constitutional text requires it. The many facets of referenda, in both
theory and practice, form the core of the chapters in this volume written by Oran
Doyle and David Kenny, Jrgen Goosens, and Jean-Philippe Derosier.

Three Challenges in the Study of Constitutional Change

The study of the foundations and traditions of constitutional amendment

necessarily entails comparative inquiry. We can of course undertake single-country
studies, as we see in this volume, but we profit most from them when they are read
alongside other jurisdictional accounts. This points to a serious limitation in the
study of constitutional change specifically, and in comparative public law generally:
we most often refer to the same comparator jurisdictions, with little attention given
to other parts of the world where relevant important developments may be
underway but that do not command our attention for a variety of reasons at times
understandable and at others inexcusable. Ran Hirschl diagnoses the problem:

[S]elf-professed comparativism sometimes amounts to little more

than a passing reference to the constitution of a country other than the
scholars own or to a small number of overanalyzed, usual suspect
constitutional settings or court ruling. The constitutional experiences
of entire regionsfrom the Nordic countries to sub-Saharan Africa to
Central and South East Asiaremain largely uncharted terrain,
understudied and generally overlooked.71

We seek to begin to remedy that problem in this volume. We feature papers on the
Caribbean by Derek OBrien and on Africa by Duncan Okubasu. There are of course
many points of national distinction in these large regions but the authors
nonetheless find threads that run across them. In their chapters, they authors
invite scholars of comparative public law in the future to explore on their own the
richness of the constitutional traditions in these underexplored regions.

A second challenge in the study of constitutional change concerns the effect of

constitutional amendments. We know the range of motivations why political actors

71Ran Hirschl, Comparative Matters: The Renaissance of Comparative Constitutional Law (Oxford:
Oxford University Press, 2014) at 4.

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choose to amend their constitution, for instance to correct a discovered flaw or to

update the constitution in light of evolving social norms or expectations. But we
know much less about the collateral consequences of constitutional amendment.
Does a frequently amended constitution generate an instability detrimental to the
constitutional order or might it bring the constitution closer to the governed by
making it seem more accessible and responsive to their wishes? And what about an
infrequently amended constitution? The reasons for its infrequent amendment
would certainly matter to the analysis but it could, on one hand, signal a durable
constitutional settlement where not much needs to change or, on the other, it could
lead to the constitutions own irrelevance if most change occurs informally and leads
to a disjunction between the constitutional text and political reality. In a colloquy in
this volume pairing their two chapters, James Fleming exchanges thoughts on these
questions with Xenophon Contiades and Alkmene Fotiadou.

A third challenge follows from the second: what is the role of the text in
constitutional amendment and in the self-understanding the people and political
actors have about their constitution? In some cases, for instance in Australia as
Lael Weiss explains in his volume, the constitutional text takes primacy over
manifestations of popular will, a tension for any constitutional democracy with an
entrenched constitution. In other cases, a constitution changes in ways not reflected
in its constitutional text, and those changes may be accepted as valid and
legitimate. These circumstances raise a different kind of tension: whether and how
the constitutional text matters. In her chapter in this volume, Kate Glover explores
these questions with respect to the Constitution of Canada.

Constitution as Amendment

Herman Finer famously wrote that we might define a constitution as its process
of amendment.72 More metaphorical than empirical, Finer nonetheless put into
words an intuition we have about the rules of constitutional amendment. No part of
a constitution is more important,73 not only for formal and functional reasons but
also for symbolic ones. Formally, constitutional amendment rules distinguish
constitutional from ordinary law,74 the latter generally subject to simple majority
legislative repeal while the former is commonly entrenched under heightened
thresholds or special procedures.75 Functionally, constitutional amendment rules

72 Herman Finer, Theory and Practice of Modern Government (New York: Henry Holt & Company,
1949) at 127.
73 John Burgess, Political Science and Comparative Constitutional Law: Volume I (Boston: Ginn &

Co., 1893) at 137.

74 See Andrs Saj, Limiting Government: An Introduction to Constitutionalism (Budapest: Central

European University Press, 1999) at 39-40.

75 Over 95 percent of the worlds constitutions entrench amendment rules. See Francesco

Giovannoni, Amendment Rules in Constitutions, Public Choice, 115 (2003) 37 at 37.

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provide an orderly and transparent procedure to correct flaws or outright mistakes

that time and experience reveal.76 Symbolically, the very design of amendment
rules may reveal the deepest values of the constitution they entrench.77

What sets amendment rules apart from other constitutional rules are their twin
constructive and destructive capacities. On one hand, amendment rules are all-
important for changing the rules of the game that the constitution creates in the
first place.78 They allow political actors to enact reforms they believe are needed for
either intrinsic or instrumental reasons. Yet the idea of constitutional amendment
need not be rooted in normative principles. Seen as a neutral device, perhaps as an
empty vessel suited to any purpose, amendment rules expose themselves to the
possibility of their own misuse. As Ulrich Preuss as warned, the amending power is
necessary to preserve the flexibility and sustainability of the constitutional order,
but it can destroy it by amending the constitution in an anti-constitutional tenor.79
Stated less ominously though no less accurately, amendment rules are, in the words
of Akhil Amar, of unsurpassed importance, for these rules define the conditions
under which all other constitutional norms may be legally displaced.80

Constitutional amendment rules are both sword and shield. Political actors may
use them to build or break the constitutional order, to strengthen or weaken
institutions, to expand or retrench rights, to deconstitute and reconstitute, as
Finer well recognized.81 In the United States, for example, what was originally
proposed and partially ratified as the Thirteenth Amendment would have given
states the unamendable power to enslave persons within their jurisdiction.82 The
Civil War intervened to put a stop to the ratification vote, and what ultimately
became entrenched in the Thirteenth Amendment was the abolition of slavery.83 An
amendment, then, can be both democracy-promoting and democracy-demoting.

As profound as Finers words may be, they do not quite capture the reality that
amendment rules and their constitutions are rooted in meta-constitutional contexts

76 Brannon P. Denning & John R. Vile, The Relevance of Constitutional Amendments: A Response
to David Strauss, Tulane Law Review, 71 (2002), 247 at 275.
77 See Richard Albert, The Expressive Function of Constitutional Amendment Rules, McGill Law

Journal, 59 (2013), 225 at 244.

78 See Bjrn Erik Rasch & Roger D. Congleton, Amendment Procedures and Constitutional

Stability, in Roger D. Congleton & Birgitta Swedenborg (eds.), Democratic Constitutional Design
and Public Policy (Cambridge: MIT Press, 2006) 319 at 319-21.
79 Ulrich K. Preuss, The Implications of Eternity Clauses: The German Experience, Israel Law

Review, 44 (2011), 429 at 430.

80 See Akhil Reed Amar, The Consent of the Government: Constitutional Amendment Outside

Article V, Columbia Law Review, 94 (1994), 457 at 461.

81 Finer, supra note 72.
82 See Michael Vorenberg, Final Freedom: The Civil War, the Abolition of Slavery, and the Thirteenth

Amendment (Cambridge: Cambridge University Press, 2001) at 20-22.

83 Constitution of the United States, amend. XIII (1865).

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shaped by history, law, politics and society. From a perspective internal to a

constitutional regime it may well be difficult to contest the claim that we can learn
much about any given constitution by looking at its amendment rules. These rules
often create a constitutional hierarchy of entrenchment that indicates what is most
important in the constitution and what is relatively more or less important. The
South African Constitutions escalating multiple thresholds of constitutional
amendment is just one of many illustrations.84 But from an external perspective we
can appreciate more immediately what political actors within a constitutional
system can less clearly see: whether, when, and how often or infrequently political
actors choose to deploy amendment rules is driven by factors better explained by
constitutional culture than the theoretical rigidity or flexibility of the constitution
itself. The phenomenon of constitutional culture is sometimes reflected in
constitutional texts, for instance in how powers are allocated, which institutions
exercise them, and how citizens interact with them. But sometimes the
phenomenon of constitutional culture escapes formal entrenchment and perhaps
also even recognition by political actors and their understanding of its sources and
consequences. A recent article by Tom Ginsburg and James Melton shows the way
forward in the study of constitutional culture: it suggests that amendment culture
may be more determinative of a constitutions amendment rate than the ease or
difficulty of its formal amendment rule.85 Derek OBrien applies his learning from
Ginsburg and Melton in his chapter for this volume on constitutional change in the
Caribbean.

Perspectives on Constitutional Amendment

The growing interest in the study of constitutional change brought together two
dozen scholars from around the world for a day-long workshop on the foundations
and traditions of constitutional amendment. Their papers, now published as
chapters in this book, double as an invitation and a challenge. They invite readers
to learn about constitutional amendment in the languages of political science,
history, law and philosophy. They also challenge readers to complicate their own
study of constitutional amendment by looking beyond text and doctrine to mine the
deeper reasons behind a given constitutional amendment, a trend of frequent or
infrequent amendment, a history of amendment success or failure, and other
inquiries both narrow and broad in the study of constitutional change. The authors
in this volume hope by their example both to reinforce the growing interest in
constitutional change and to light the path to new directions of exploration.

84 See Constitution of South Africa, s. 74 (1996).

85 See Tom Ginsburg & James Melton, Does the Constitutional Amendment Rule Matter at All?
Amendment Culture and the Challenges of Measuring Amendment Difficulty, International Journal
of Constitutional Law, 13 (2015), 686.

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This book is divided into two main parts. The firston the foundations of
constitutional amendmentexplores the theoretical foundations of constitutional
amendment, principally taking as its point of departure the theory of constituent
power, an idea that has shaped the study of constitutional amendment and one that
the authors in this first part variously reinforce, refine, challenge and interrogate.

In the opening chapter on Amendment Power, Constituent Power, and Popular

Sovereignty: Linking Unamendability and Amendment Procedures, Yaniv Roznai
develops the distinction between primary constituent (constitution-making) power
and secondary constituent (constitution-amending) power, the latter limited by
unamendability and the former wholly unlimited by it. Roznai develops the
distinction by introducing the spectrum theory of constitutional amendment to
identify when it is proper to invalidate a constitutional amendment. According to
his spectrum theory, the more the democratic characteristics of the amendment
power resemble those of the primary constituent power, the less the amendment
power should be bound by limitations, and the more it resembles an ordinary
legislative power, the more it should be bound by limitations.

Zoran Oklopcics chapter on Constitutional Theory and Cognitive Estrangement:

Beyond Revolutions, Amendments and Constitutional Moments, discusses two
competing imaginaries of peoplehood: the Sieysian and the Lockean. Under the
Lockean view, the people are caught in a binary: either they radically re-constitute
the constitutional order as a result from oppression or they change it through
regular constitutional channels. In his chapter, Oklopcic seeks to dissolve that
binary to free us to study constitutional theory anew. Oklopcic suggests that this
new beginning is possible if we estrange ourselves from the concept of the peoples
personhood, if we personify the constitutional order itself, and if we see
constitutional theory as a real person, with hopes, ideals and anxieties, just like us.

Next, Oran Doyles chapter on Constraints on Constitutional Amendment Powers

begins from the proposition that the constraint of constitutional amendment
powers, by rules or standards that determine the validity of constitutional
amendments, is widespread. The fundamental question posed by this practice is
whether the values served by constitutional constraints can justify a contemporary
majority being subject to a past generation or a judicial elite. Doyle observes that
the literature mostly fails to address those questions directly because it focuses
instead on the quantum of change introduced by constitutional amendments. In his
chapter, Doyle develops a set of four distinctions that establish a typology of ways to
conceive of constraining the amendment power. His typology focuses attention on
the extent to which these constraints disempower contemporary majorities in favor
of past generations or judicial elites. In this way, it provides the baseline against
which we might evaluate the justification of those constraints.

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Mark Tushnet reacts to Doyles Constraints on Constitutional Amendment

Powers in his comment and analyzes Doyles arguments on limitations to
amendment powers. Tushnet categorizes his comments into two broad groups. The
first set of comments deal with Doyles discussion of what Doyle calls the
interpretative and moral approaches to identifying constraints on amendment
powers. The second focuses on Doyles discussion of the costs to majoritarianismor
self-governancewhen there are legal constraints on those powers.

In Constituting the Amendment Power: A Framework for Comparative

Amendment Law, Thomaz Pereira argues that the distinction between constituent
power and constituted power is intrinsic to the very concept of constitutionalism,
since it relates to the essential innovations brought out by the emergence of
constitutional democracies. Pereira argues that comparative constitutional law can
benefit from a better understanding of these concepts, which can bring insight into
the relationship between how different constitutional systems regulate the
amendment power, and the political history and constitutional culture of these
different systems. One of the major takeaways from his chapter is that an adequate
understanding of the constituent/constituted power divide depends not on a choice
between different abstract constitutional theories but on the political history and
legal culture of different constitutional systems.

Luisa Fernanda Garca Lpez discusses the many contributions Emmanuel

Sieys made to modern constitutionalism in her essay entitled Sieys: The Spirit of
Constitutional Democracy? From eradicating royal prerogatives to shaping the
precursor of the inseparable relation between national sovereignty and
representative government, Sieyes contributions were vital to modern
constitutional theory. As Garca Lpez writes, Sieyes understanding of the Nation
institutionalized public law as a transfer of sovereignty from the people to the state.
From here the separation of powers followed and the primacy of law and the
legislative power over executive and judicial powers.

Then, in Revolutionary Reform in Venezuela: Electoral Rules and Historical

Narratives in the Creation of the 1999 Constitution, Joshua Braver turns away from
Carl Schmitt and towards Hannah Arendt to retell the Venezuelan story and
recover an alternative vision of new beginnings called revolutionary reform.
Braver suggests that, like Schmitt, Arendt and revolutionary reformists celebrate
momentous breaks, but they are partial and justified as necessary to realize the
potential of old ideals. In Venezuela, as Braver explains, Chvezs achievement of
first-past-the-post electoral rules for the constituent assembly was the turning point
that allowed him to eliminate the opposition through the purging of all other
institutions. Braver argues that Chvezs rule embodied a radical vision of
revolution in which exclusion is necessary to completely rupture with all past
Venezuelan history. Lacking its own vision of revolution, the Supreme Court

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struggled to contest the content of the electoral rule. Braver develops an alternative
revolutionary reformist narrative of Venezuelan history that might have supported
a more inclusive electoral rule.

Juliano Zaiden Benvindo comments on Bravers chapter in his own on

Revolutionary Reform and the Seduction of Constitutionalism. He argues that
constitutionalism may be inherently appealing but that it is limited by the
historically contingent realities of social life. Constitutionalism, he writes, must face
the reality of countries historically marked by semi-authoritarian practices. In this
complex scenario, the dilemmas and paradoxes of constitutionalism are pushed to
their very extremes. Zaiden Benvindo agrees with Bravers understanding of how
Venezuela lost sight of constitutionalism but suggests that any analysis, in order to
be complete, must account the challenges of economic development in Venezuela.

The second part of the book focuses on the traditions of the constitutional
amendment. It includes ten country-specific or regional comparative studies on
various subjects related to constitutional amendment. We cover vast ground: Africa,
Australia, Canada, the Caribbean, France, Ireland, the Netherlands, the United
States, as well as important inquiries into the temporal dimensions of constitutional
change and the frequency and difficulty of constitutional amendment.

We begin with Sofia Ranchordss exploration of contingent constitutional

change in her chapter on Constitutional Sunrise. Her chapter probes constitutional
changes that are contingent upon the verification of a legal or factual condition.
Sunrise clauses are forward-looking instruments that do not take effect until a later
event or fact materializes. Ranchords defines sunrise clauses in broad terms that
encompass different types of contingent provisions, ranging from the delay of the
coming-into-force of a provision to sunrise clauses that tie the coming into effect of
a provision to the enactment of statute. She draws from the Belgian, Indian, Irish
and United States Constitutions to inquire into the legitimacy of sunrise clauses.

We then move to Oran Doyle and David Kennys co-authored chapter on

Constitutional Change and Interest Group Politics: Irelands Childrens Rights
Referendum. Their chapter analyses the 2012 childrens rights amendment in
Ireland, which, according to its proponents, addressed problems that had emerged
in Irish constitutional law where parents rights where held to be superior to
childrens rights. Doyle and Kenny draw from this constitutional referendum on
this amendment proposal to explore how processes of formal constitutional
amendment can be used to alter intricate matters of constitutional law doctrine,
and to illustrate the difficulties that these attempts encounter. They argue that the
calls for this reform were based on a misunderstanding of this area of constitutional
law, and that the changes wrought by the amendment were minimal. Despite this,
they observe, interest groups that had called for the amendment insisted that it was

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a major change, leading to a confusing referendum campaign that failed to engage

the public and resulted in the referendum passing by a surprisingly narrow margin.
They highlight several lessons from this amendment experiencelessons relating to
the difficulties of amending constitutions to achieve changes in legal doctrine, to the
role of legal academics in highlighting constitutional problems and correcting
misunderstandings of constitutional issues, and to the underexplored role of
interest groups in effecting constitutional change.

In Amendment-Metrics: The Good, the Bad and the Frequently Amended

Constitution, Xenophon Contiades and Alkmene Fotiadou, my two co-editors for this
volume, ask an important question that constitutional designers ought to consider
when they build constitutions: can we identify a substandard constitution on the
basis of its amendment rate? They note that the scholarly literature relates long
constitutions with a higher amendment rate and therefore less stability. Their
chapter evaluates this claim and suggests why a high amendment rate need not
necessarily be associated with a substandard constitution in terms of the quality of
its design. They moreover offer criteria for evaluating constitutional quality.

James Fleming comments on Contiades and Fotiadous chapter. He assesses

their critique of the argument that long, frequently amended constitutions tend to
be bad constitutions. He also criticizes Contiades and Fotiadous analysis of the
purposes of amendment, arguing that most amendments, in some way, aim to
respond to imperfections or to correct flaws in existing constitutions. Fleming
furthermore draws on the analysis of John Marshall to sketch some general criteria
on what a good constitution might look like: it should be a great outline, not a
detailed legal code; it should be difficult to amend, and it should not be amended
frequently. Fleming closes his chapter with a final point: that a constitution, in
order to be a good one, should serve as basic law, higher law, and our law.

The next two chapters develop the important tension between constitutional text
and political practice discussed above, with a focus on Australia and Canada,
respectively. In Constituting the People: The Paradoxical Place of the Formal
Amendment Procedure in Australian Constitutionalism, Weis inquires whether and
how popular sovereignty is recognized and exercised in Australia. On one hand, she
writes, the idea that the use of the countrys formal amendment rules reflects the
will of people is attractive for a tradition that places primacy on the constitutional
text. On the other, she observes that the practice of constitutional change in
Australia makes it difficult to conclude that the countrys formal amendment rules
can fulfill this normative function of reflecting the consent of the governed.

In Hard Amendment Cases in Canada, Glover lays out the extraordinarily

complex formal amendment rules in the Canadian Constitution and walks readers
through a controversial hypothetical constitutional change of Canadaan example

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that highlights the uncertainty inherent in the structure of Canadas formal

amendment rules. For the example she choosesmandatory bilingualism for
Supreme Court judgesa plain reading of the constitutional text could suggest that
Parliament has the authority to impose this requirement by ordinary law alone. Yet
Glover offers a deeper contextual reading of the Constitutions formal amendment
rules and concludes that Parliament cannot act unilaterally to impose such an
amendment because the change it would affect amounts to a constitutional
amendment in relation to the Courts composition.

Returning to the theme of constitutional flexibility and rigidity, Derek OBrien

introduces us to the Caribbean in his chapter on Formal Amendment Rules and
Constitutional Reform in the Commonwealth Caribbean. OBrien raises a paradox:
the Constitutions of the Commonwealth Caribbean have exceeded the average
lifespan for democratic constitutions but not because their formal amendment rules
promote flexibility; it is instead because the formal amendment rules have
themselves been a barrier to constitutional amendment. What is more, explains
OBrien, despite the availability of readily deployable formal amendment rules, the
constitutional culture in the region is resistant to constitutional reform.

Moving east from the Caribbean to France, Jean-Philippe Derosier investigates

the idea of the people in his chapter on The French Peoples Role in Amending the
Constitution. Derosier suggests two ways to understand the body that is the people:
the social or political people, on one hand, and the legal people on the other.
Returning to the theory of constituent power that began the volume, Derosier
classifies the social/political people as the collectivity that exercises constituent
power in a democracy. The legal people, however, he writes, cannot act outside of
the confines of the law. He draws from a controversial judgment of the French
Conseil constitutionnel that reviewed the constitutionality of a national referendum
to develop this distinction and to evaluate its implications for constitutional change.

We next travel to Africa. Duncan Okubasu reveals in his chapter on The

Implication of Conflation of Normal and Constitutional Politics on Constitutional
Change in Africa that virtually all countries in Africa have changed their
constitution in the last decade. He shows that most constitutions have been
significantly altered for what he considers are insignificant reasons, namely to
secure an immediate political advantage. He also shows that major changes in
political leadership are often if not always accompanied by constitutional change.
Okubasu offers an explanation why: normal and constitutional politics have become
indistinguishable, and this has rendered constitutions largely irrelevant and has
negatively impacted the stability of constitutions in Africa.

The final chapter in this second part is Jrgen Goossens Direct Democracy and
Constitutional Change in the US: Institutional Learning from State Laboratories.

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Goosens begins with an observation: the paths to constitutional change in Article V

of the United States Constitution only involve legislatures and do not authorize any
form of direct democracy. In contrast, he notes, the constitutions of the states reflect
a strong traditions of direct democracy and majoritarian voting rules. Why this
difference? Goosens suggests that the United States Constitution stands to learn
from state constitutional experience. For three reasons, he argues, the United
States Constitution should be reformed to include mechanisms of direct democracy:
first, the core of the American tradition of constitutional amendment is rooted in
popular sovereignty; second, a non-exclusive reading of Article V makes it possible
that referendal change in the United States would be both valid and legitimate; and
third, evidence from state practice is persuasive evidence of the transferability of
direct democratic mechanisms of change to the federal level.

The volume closes with a conclusion by Contiades and Fotiadou. Entitled The
Emergence of Comparative Constitutional Amendment as a New Discipline: Towards
a Paradigm Shift, Contiades and Fotiadou explore in this concluding chapter how
the concept of constitutional amendment has evolved through the years to
encompass a matrix of notions, theories and practices. They argue that comparative
constitutional amendment has become a distinct field, and has provided a
conceptual lens through which to understand the constitution, constitutional law
and constitutionalism more generally.

The Future of Constitutional Amendment

The chapters in this volume cover new ground and chart new lines of inquiry
that augur well for the future of the study of constitutional amendment and also for
the design of constitutional amendment rules. We as contributors and editors very
much hope that the field of comparative constitutional amendment continues to
attract and sustain the interest of scholars of public law. The very best scholarship
in the field must be attentive equally to formal and informal procedures of
constitutional change, how the two interact, also to the costs and consequences of
privileging one over the other. We have begun, in this volume, by taking the first
step of probing the traditions and foundations of formal amendment, recognizing
that much more work remains to be done on informal amendment and how it may
be driven, preempted and in any case is deeply connected to formal amendment.
Many of the chapters already explore these interconnections. We hope that future
scholarship in the field will take our invitation to describe and theorize them even
more concretely. For now, we take encouragement from the growing interest in the
field of comparative constitutional amendment, and we look forward to learning
from and also contributing to the new scholarship that follows from this book.

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