Constitutional Amendment by Constitutional Desuetude

47 Pages Posted: 2 Jul 2014 Last revised: 29 Dec 2015

Richard Albert

Boston College - Law School; Yale University - Law School; Universidad Externado de Colombia - Facultad de Derecho; University of Toronto - Faculty of Law; Interdisciplinary Center (IDC) Herzliyah - Radzyner School of Law

Date Written: March 1, 2014

Abstract

Scholars have shown that written constitutions may be informally amended in various ways, for instance by judicial interpretation, statute, or executive action. But scholars have yet to fully appreciate that written constitutions may also be informally amended by desuetude. Informal amendment by constitutional desuetude occurs when a constitutional provision loses its binding force upon political actors as a result of its conscious sustained nonuse and public repudiation by political actors. Though it is a species of informal amendment, constitutional desuetude possesses unique properties. Constitutional desuetude reflects the informal repeal of a constitutional provision as a result of the establishment of a new constitutional convention. Despite its obsolescence, the desuetudinal constitutional provision remains entrenched in the constitutional text. Consequently, although informal amendment generally leaves the constitutional text entrenched, unchanged and politically valid, this particular variation of informal amendment leaves the text entrenched and unchanged but renders it politically invalid. In this paper, I illustrate and theorize the phenomenon of informal amendment by constitutional desuetude with reference to the Canadian Constitution, I construct an analytical framework for identifying constitutional desuetude in other jurisdictions, I distinguish constitutional desuetude from other forms of obsolescence, and I also explore the costs of constitutional desuetude.

Keywords: Constitutional Amendment, Formal Amendment, Informal Amendment, Desuetude, Disallowance, Reservation, Notwithstanding Clause, Section 33, Constitutional Convention

Suggested Citation

Albert, Richard, Constitutional Amendment by Constitutional Desuetude (March 1, 2014). 62 American Journal of Comparative Law 641 (2014); Boston College Law School Legal Studies Research Paper No. 328. Available at SSRN: https://ssrn.com/abstract=2461509

Richard Albert (Contact Author)

Boston College - Law School ( email )

885 Centre Street
Boston, MA 02459-1163
United States
617.552.3930 (Phone)

HOME PAGE: http://www.richardalbert.com

Yale University - Law School ( email )

127 Wall Street
New Haven, CT 06520-8215
United States

HOME PAGE: http://www.law.yale.edu

Universidad Externado de Colombia - Facultad de Derecho

Calle 12 # 1-17 este
Calle 12 0 83
Bogota D.C, Cundinamarca 3456
Colombia

HOME PAGE: http://190.7.110.123/irj/portal/anonymous/fac_derecho

University of Toronto - Faculty of Law ( email )

78 and 84 Queen's Park
Toronto, Ontario M5S 2C5
Canada

HOME PAGE: http://www.law.utoronto.ca

Interdisciplinary Center (IDC) Herzliyah - Radzyner School of Law ( email )

P.O. Box 167
Herzliya, 46150
Israel

HOME PAGE: http://https://www.idc.ac.il/en/schools/law/pages/home.aspx

Paper statistics

Downloads
317
Rank
77,035
Abstract Views
1,987