Quasi-Constitutional Amendments

32 Pages Posted: 4 Oct 2016 Last revised: 25 Oct 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: September 28, 2016

Abstract

The difficulty of formal amendment in constitutional democracies has given rise to an increasingly common phenomenon: quasi-constitutional amendments. These are sub-constitutional changes that do not possess the same legal status as a constitutional amendment, that are formally susceptible to statutory repeal or revision, but that may achieve constitutional status over time as a result of their subject-matter. The impetus for a quasi-constitutional amendment is an intent to circumvent onerous rules of formal amendment in order to alter the operation of a set of existing norms in the constitution. Where constitutional actors determine, correctly or not, that the current political landscape would frustrate their plans for a constitutional amendment to entrench new policy preferences, they resort instead to sub-constitutional means whose successful execution requires less or perhaps even no cross-party or inter-institutional coordination. This strategy sometimes results in significant changes that have the functional effect though not the formal result of a constitutional amendment. In this Chapter, I illustrate this phenomenon with reference to the Constitution of Canada, though I stress at the outset that we can observe this phenomenon elsewhere in the world.

Keywords: Constitutional Amendment, Constitutional Statutes, Quasi-Constitutionality, Constitutional Change, Constitution of Canada, Canadian Constitution, Amending Formula, Amendment Difficulty, Constitutional Rigidity, Superstatutes, Canadian Bill of Rights Act, Regional Veto Law, Senate Reform

Suggested Citation

Albert, Richard, Quasi-Constitutional Amendments (September 28, 2016). Buffalo Law Review Vol. 65, 739, 2016, Boston College Law School Legal Studies Research Paper No. 419, Available at SSRN: https://ssrn.com/abstract=2844770 or http://dx.doi.org/10.2139/ssrn.2844770

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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Colombia

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Interdisciplinary Center (IDC) Herzliyah - Radzyner School of Law ( email )

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Herzliya, 46150
Israel

HOME PAGE: http://https://www.idc.ac.il/en/schools/law/pages/home.aspx

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