Tiered Constitutional Design
65 Pages Posted: 17 Apr 2017 Last revised: 5 May 2017
Date Written: April 1, 2017
Scholarship has posited two models of constitutionalism. One is short, abstract, and rigid, like the United States federal constitution. The other is lengthy, detailed, and flexible, like the constitutions found in many U.S. states and in many other countries around the world. This article argues that there is a descriptively common and normatively attractive third model: tiered constitutional design. A tiered design aims to combine the virtues of rigidity and flexibility by creating different rules of constitutional amendment for different parts of the constitution. Most provisions are made fairly easy to change, but certain articles or principles are given higher levels of entrenchment. A tiered design can potentially preserve space for needed updates to the constitutional text, a virtue of flexible design, while also providing stability for the core of the constitution and protecting against anti-democratic forms of constitutional change, a benefit of rigid forms of constitutionalism like Article V in the United States. Drawing on numerous examples of tiered designs including U.S. states like California and countries as diverse as Canada, Ecuador, India, and Ghana, the article offers a critical analysis of the architecture of tiered designs and explores how they work in practice. While finding unsurprisingly that enforcement is often imperfect, the article concludes that judicial and popular enforcement of tiered designs does show promise in helping to combat the wave of anti-democratic constitutional projects that is threatening to engulf much of the world.
Keywords: constitutional amendment, constitutional change, abusive constitutionalism, constitutional design, unconstitutional constitutional amendment
JEL Classification: K00, K33
Suggested Citation: Suggested Citation