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Constitutional AmendmentsMaking, Breaking, and Changing Constitutions$
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Richard Albert

Print publication date: 2019

Print ISBN-13: 9780190640484

Published to Oxford Scholarship Online: October 2019

DOI: 10.1093/oso/9780190640484.001.0001

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The Three Varieties of Unamendability

The Three Varieties of Unamendability

(p.139) 4 The Three Varieties of Unamendability
Constitutional Amendments

Richard Albert

Oxford University Press

Constitutions sometimes codify unamendable rules. These unamendable rules are resistant to legal forms of change. They cannot be altered using the codified rules of amendment. Nor can they be repealed. The only properly legal way to change them is to rewrite the constitution. Why do constitutional designers codify these unamendable rules? This chapter explains seven reasons why constitutional designers choose to codify unamendable rules. In explaining these reasons, the chapter discusses many different examples of codified unamendability around the world. This chapter also explains that unamendability can arise in two other forms. First, interpretive unamendability emerges from a judicial decision or an unwritten constitutional norm rooted in the dialogic interactions of political actors. Examples include the basic structure doctrine in India and the substitution of the constitution doctrine in Colombia. Second, constructive unamendability arises as a result of the practical impossibility of gathering the majorities required to amend a rule despite that rule being freely amendable in theory. This chapter illustrates how constructive unamendability occurs and operates with reference to the phenomenon of constitutional veneration, the use of omnibus amendment bills in Canada, the challenge of multi-party incompatibility, and the Equal Suffrage Clause in the U.S. Constitution,. This chapter then connects the three varieties of unamendability to the discussion in Chapter 3 on measuring amendment difficulty. This chapter shows that unamendability further complicates the effort to measure amendment difficulty across jurisdictions and makes it impossible to do so with any reliability. This chapter considers constitutions from around the globe.

Keywords:   basic structure doctrine, constitutional amendment, constitutional conventions, constitutional design, constitutional veneration, Equal Suffrage Clause, formal unamendability, informal unamendability, unconstitutional constitutional amendment, unwritten constitutional norms

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