Constitutional Amendment and Dismemberment

Abstract

Some constitutional amendments are not amendments at all. They are self-conscious efforts to repudiate the essential characteristics of a constitution and to destroy its foundations. And yet we commonly identify transformative changes like these as constitutional amendments no different from others.

A radically transformative change of this sort is not a constitutional amendment. It is a constitutional dismemberment. A constitutional dismemberment is a deliberate effort to disassemble one or more of the constitution’s constituent parts, whether codified or uncodified, without breaking the legal continuity that is necessary if not useful for maintaining a stable polity. Dismemberment seeks to transform the identity, the fundamental values or the architecture of the constitution.

In this Article, I introduce and theorize the phenomenon, concept, doctrine and theory of constitutional dismemberment. Drawing from jurisdictions around the world — Brazil, Canada, Colombia, Honduras, India, Ireland, Jamaica, Japan, New Zealand, Saint Lucia, Taiwan, Turkey, the United Kingdom, the United States, the Caribbean and the European Union — I explain how constitutional dismemberment responds to the major challenges in constitutional change today. How should constitutional designers structure the rules of constitutional change? How may political actors legally and legitimately formalize transformative changes to a constitution? Should courts review the constitutionality of constitutional amendments? And how may we redeem the foundational theory of constituent power to give it some purchase in modern constitutionalism? The theory of constitutional dismemberment offers a suite of pragmatic solutions to these enduring puzzles in the modern study of constitutional change and in the design of its procedures.

Keywords: Constitutional Amendment, Constitution-Making, Unconstitutional Constitutional Amendment, Constituent Power, United States Constitution, Article V, Constitutional Convention, Unamendable Constitutional Provision, Unamendability, Comparative Constitutional Law, Constitutional Design