American Exceptionalism in Constitutional Amendment

Abstract

The American traditions of constitutional amendment raise contrasts and continuities with constitutional amendment in much of the rest of the democratic world. On the one hand, the United States Constitution stands apart from many foreign democratic constitutions for its extraordinary formal amendment difficulty, for not entrenching any current form of formal unamendability, and for resisting the global trend toward the doctrine of unconstitutional constitutional amendment. On the other hand, state constitutions in the United States more closely resemble the world’s democratic constitutions: they are freely susceptible to formal amendment, they entrench current forms of formal unamendability, and they recognize the doctrine of unconstitutional constitutional amendment. Constitutional amendment in the United States is therefore peculiar in entrenching both departures from and convergences with constitutional amendment in the larger democratic world. In this Article prepared for a symposium on “State Constitutional Change,” I explore how American state constitutions differ from the United States Constitution yet resemble the world’s other democratic constitutions in how they structure constitutional amendment. I conclude with thoughts on the organizing logic of constitutional amendment under the United States Constitution.

Keywords: Constitutional Amendment, Constitutional Change, United States Constitution, U.S. State Constitutions, Revision, Unamendable Constitutional Provision, Formal Unamendability, Informal Unamendability, Unconstitutional Constitutional Amendment, Popular Sovereignty