Constructive Unamendability in Canada and the United States

67 Supreme Court Law Review (2d) 181 (2014)

Boston College Law School Legal Studies Research Paper No. 331

39 Pages Posted: 13 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 6, 2014

Abstract

Democratic constitutions often entrench provisions against formal amendment. For example, republicanism is formally unamendable in Italy, as is federalism in Germany, political pluralism in Portugal, and secularism in Turkey. Neither the Canadian Constitution nor the United States Constitution entrenches a similar form of formal unamendability. But both entrench a peculiar form of unamendability that results from neither constitutional design nor constitutional law but from constitutional politics. Constructive unamendability derives from a political climate that makes it practically unlikely, though not theoretically impossible, to meet the high thresholds the constitution sets for formal amendment unless constitutional politics somehow perform heroics. Faced with the constructive unamendability of a rule they wish to formally amend, political actors may resort to arguably legal though illegitimate methods to circumvent the strictures preventing formal amendment. In this Article, I classify the many forms of unamendability, I develop the concept of constructive unamendability, I illustrate that the Senate in both Canada and the United States is constructively unamendable, and I suggest how Canadian and American political actors might illegitimately amend the constructively unamendable Senate, a strategy the Government of Canada intended to pursue before the Supreme Court of Canada repudiated its Senate reform efforts in the recent Senate Reference.

Keywords: Constitutional Amendment, Unamendability, Constructive Unamendability, Senate Reform, Equal Suffrage Clause, Article V, Supreme Court of Canada

Suggested Citation

Albert, Richard, Constructive Unamendability in Canada and the United States (March 6, 2014). 67 Supreme Court Law Review (2d) 181 (2014); Boston College Law School Legal Studies Research Paper No. 331. Available at SSRN: https://ssrn.com/abstract=2465181

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 )

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New Haven, CT 06520-8215
United States

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

Universidad Externado de Colombia - Facultad de Derecho

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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

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