Amendment and Revision in the Unmaking of Constitutions

Edward Elgar Handbook on Comparative Constitution-Making (David Landau & Hanna Lerner, eds., 2017 Forthcoming)

Boston College Law School Legal Studies Research Paper No. 420

25 Pages Posted: 25 Sep 2016 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: October 26, 2016

Abstract

The distinction between amendment and revision is foundational to our present understanding of formal constitutional change. Scholars have suggested how to differentiate amendment from revision, constitutional designers have entrenched distinct procedures for each, and judges have applied both of these concepts to actual cases and controversies. Yet even at its best the distinction is unclear and it raises more questions than it offers answers. My purpose in this invited contribution to the Edward Elgar Handbook on Comparative Constitution-Making is to clarify the distinction between amendment and revision from a perspective internal to the scholarship on constitutional change. I suggest with reference to jurisdictions as varied as Belize, Canada the Czech Republic and India that an amendment should be understood as an effort to continue the constitution-making project that began at the founding moment, while a revision should be understood as an effort to unmake the constitution by introducing an extraordinary change that is inconsistent with the fundamental presuppositions of the constitution. I conclude by suggesting that our reinterpretation of the distinction between amendment and revision nonetheless remains susceptible to exploitation.

Keywords: Constitutional Amendment, Constitutional Change, Constitutional Revision, Constitutional Replacement, Constitutional Founding, Constitutional Revolution, Amendment, Revision, Constitutional Moments, Belize, Canada, Czech Republic, India, United States, Comparative Constitutional Law

Suggested Citation

Albert, Richard, Amendment and Revision in the Unmaking of Constitutions (October 26, 2016). Edward Elgar Handbook on Comparative Constitution-Making (David Landau & Hanna Lerner, eds., 2017 Forthcoming), Boston College Law School Legal Studies Research Paper No. 420, Available at SSRN: https://ssrn.com/abstract=2841110 or http://dx.doi.org/10.2139/ssrn.2841110

Richard Albert (Contact Author)

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

727 East Dean Keeton Street
Austin, TX 78705
United States
512.213.1113 (Phone)

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

Yale University - Law School

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United States

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

University of Toronto - Faculty of Law ( email )

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Toronto, Ontario M5S 2C5
Canada

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

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://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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