Quasi-Constitutional Change Without Intent – A Response to Richard Albert

Buffalo Law Review 65(5) (2017, Forthcoming)

23 Pages Posted: 24 Aug 2017 Last revised: 13 May 2018

Reijer Passchier

Leiden University - Leiden Law School

Date Written: August 17, 2017

Abstract

Recently, Buffalo Law Review published Richard Albert’s article on “quasi-constitutional amendments.” These are, in Albert’s words, “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.” In this essay, I respond to Albert’s illustration and understanding of this of this phenomenon. The central point I make concerns Albert’s insistence on quasi-constitutional amendments being the result of a “self-conscious” effort to circumvent “onerous rules of formal amendment” in order to alter the operation of a set of existing norms in the constitution. I argue that a truly comprehensive theory of quasi-constitutional amendments – or of the broader phenomenon of informal constitutional change - is also able to account for constitutional change that is caused by facts not accompanied by a (demonstrable) intent or awareness of the change on the part of constitutional actors. Recognizing such change, which I refer to as “silent constitutional change,” has implications for the way we should describe processes of constitutional development and explain why constitutional change does not always come about through the “front door” of a formal constitutional amendment procedure.

Keywords: constitutional change, Richard Albert, quasi-constitutional amendment, informal constitutional change, silent constitutional change

Suggested Citation

Passchier, Reijer, Quasi-Constitutional Change Without Intent – A Response to Richard Albert (August 17, 2017). Buffalo Law Review 65(5) (2017, Forthcoming). Available at SSRN: https://ssrn.com/abstract=3020668

Reijer Passchier (Contact Author)

Leiden University - Leiden Law School ( email )

P.O. Box 9520
2300 RA Leiden, NL-2300RA
Netherlands

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