How Unwritten Constitutional Norms Change Written Constitutions

38 Dublin University Law Journal 387 (2015)

Boston College Law School Legal Studies Research Paper No. 364

34 Pages Posted: 10 Jul 2015 Last revised: 15 Sep 2017

See all articles by Richard Albert

Richard Albert

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

Date Written: July 9, 2015

Abstract

Written constitutions are susceptible to informal changes that do not manifest themselves in alterations to the text, for instance as a result of judicial interpretation, legislative enactment or executive action. This phenomenon is well developed in the scholarly literature on constitutional change and informal constitutional amendment. But what remains understudied and undertheorized in Canada and the United States is how written constitutions change informally as a result of the development of an unwritten constitutional norm, otherwise known as a constitutional convention. In this Article, I hypothesize with reference to the Canadian and United States Constitutions that there exist two major categories of informal constitutional change by constitutional convention: incorporation and repudiation. I suggest also that incorporation and repudiation may each occur in two ways: incorporation may occur by filling an existing void in the constitutional text or by refining one of its existing provisions, and repudiation may result from creating a void in the constitutional text or from substituting one of its existing provisions. I then evaluate whether these four forms informal constitutional change by constitutional convention entail costs to the rule of law where constitutional meaning is rooted in the present public meaning of the constitutional text. My larger purpose in this Article is to invite a dialogue with comparative public law scholars on how unwritten constitutional norms change written constitutions so that we may ultimately better understand the forms and implications of unwritten constitutional change.

Keywords: Constitutional Change, Constitutional Convention, Unwritten Constitutional Norms, Constitutional Amendment, Formal Amendment, Informal Amendment, Constitutional Interpretation, Constitution of Canada, United States Constitution, Ivor Jennings, Rule of Law, Democracy

Suggested Citation

Albert, Richard, How Unwritten Constitutional Norms Change Written Constitutions (July 9, 2015). 38 Dublin University Law Journal 387 (2015), Boston College Law School Legal Studies Research Paper No. 364, Available at SSRN: https://ssrn.com/abstract=2628460

Richard Albert (Contact Author)

University of Texas at Austin - School of Law ( email )

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HOME PAGE: http://law.utexas.edu/faculty/richard-albert

Yale University - Law School

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University of Toronto - Faculty of Law ( email )

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Canada

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Universidad Externado de Colombia - Facultad de Derecho

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Colombia

HOME PAGE: http://https://www.uexternado.edu.co/derecho/

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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