Tiered Constitutional Design

75 Pages Posted: 17 Apr 2017 Last revised: 6 Apr 2020

See all articles by Rosalind Dixon

Rosalind Dixon

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

David Landau

Florida State University - College of Law

Date Written: 2018

Abstract

Scholarship has posited two models of constitutionalism. One is short,abstract, and rigid, like the United States 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 protection against antidemocratic forms of constitutional change, a benefit of rigid forms of constitutionalism as demonstrated by Article V of the U.S. Constitution. Drawing on numerous examples of tiered de-signs including U.S. states like California and countries as diverse as Canada,Ecuador, India, and Ghana, this 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, this Article concludes that judicial and popular enforcement of tiered designs does show promise in helping to combat the wave of antidemocratic 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 (2018). 86 George Washington Law Review 438 (2018); FSU College of Law, Public Law Research Paper No. 839. Available at SSRN: https://ssrn.com/abstract=2953755

Rosalind Dixon

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

Kensington, New South Wales 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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