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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 Architecture of Constitutional Amendment

The Architecture of Constitutional Amendment

(p.175) 5 The Architecture of Constitutional Amendment
Constitutional Amendments

Richard Albert

Oxford University Press

Constitutional amendment rules were once very simple in their design. A constitution codified a one-size-fits-all procedure for amendments to any part of the constitution, and that was it. Today, amendment rules are considerably more complex in their design and in the possibilities they offer constitutional designers for structuring their rules of constitutional change. This chapter examines the architecture of constitutional amendment, specifically the options available to constitutional designers to build their own rules of change. This chapter also weighs the strengths and weaknesses of these options and offers some guidance on when one choice may be better than another. This chapter compares single-track and multi-track pathways in constitutional amendment, single-subject and omnibus amendment bills, and procedures for amendment and dismemberment. This chapter also explains why codified unamendability is problematic for democracy and suggests an alternative design that can achieve the expressive function of unamendability while not denying the fundamental right of amendment. This chapter moreover examines the important relationship between time and change, namely how constitutional designers can use and manipulate time in their design of amendment rules. Finally, this chapter explores judicial review of constitutional amendments, beginning first by explaining eight strategies a court can use to invalidate an amendment and then elaborating several alternatives to the judicial invalidation of constitutional amendments. What results is a deep dive into the design of amendment rules. This chapter considers constitutions from around the globe.

Keywords:   Charlottetown Accord, constitutional amendment, constitutional design, Equal Rights Amendment, Equal Suffrage Clause, federalism, Meech Lake Accord, Patriation Reference, unamendability, unconstitutional constitutional amendment

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