The Structure of Constitutional Amendment Rules
63 Pages Posted: 2 Jul 2014 Last revised: 26 Jan 2015
Date Written: March 1, 2014
The structure of formal constitutional amendment rules has received little scholarly attention. Constitutional designers therefore have few academic resources to guide them in designing the rules of formal amendment — perhaps the most important part of any constitution. In this Article, I fill that void by creating a new classification of formal amendment rules based on my analysis of formal amendment rules in constitutional democracies. I explain and illustrate that formal amendment rules are conceptually structured in three tiers: (1) foundations, which either entrench or are silent on the distinction between constitutional amendment and revision; (2) frameworks, consisting of one of six combinations of comprehensive, restricted or exceptional single-track or multi-track procedures; and (3) specifications, which supplement amendment foundations and frameworks with voting thresholds, quorum requirements, subject-matter restrictions, temporal requirements, electoral preconditions and defense mechanisms. I also show how constitutional designers may use this classification to manage federalism, express constitutional values, enhance or diminish the judicial role, and pursue democratic outcomes related to governance, constitutional endurance, and amendment difficulty. My larger purpose is to enliven the study of formal amendment rules by generating a research agenda into their structure and uses, and the options they present to constitutional designers.
Keywords: Constitutional Amendment, Formal Amendment, Constitutional Design, Revision, Constitutional Values
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