Tiered Constitutional Design

65 Pages Posted: 17 Apr 2017  

Rosalind Dixon

University of New South Wales (UNSW) - Faculty of Law

David Landau

Florida State University - College of Law

Date Written: April 2017

Abstract

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

Dixon, Rosalind and Landau, David, Tiered Constitutional Design (April 2017). George Washington Law Review, Vol. 86. Available at SSRN: https://ssrn.com/abstract=2953755

Rosalind Dixon

University of New South Wales (UNSW) - Faculty of Law ( email )

Sydney, NSW 2052
Australia

David Landau (Contact Author)

Florida State University - College of Law ( email )

425 W. Jefferson Street
Tallahassee, FL 32306
United States

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