Amendment and Revision in the Unmaking of Constitutions
Edward Elgar Handbook on Comparative Constitution-Making (David Landau & Hanna Lerner, eds., 2017 Forthcoming)
25 Pages Posted: 25 Sep 2016 Last revised: 15 Sep 2017
Date Written: October 26, 2016
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
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