Rescuing the Unconstitutional Constitutional Amendment Doctrine: A Reply to Richard Albert

Written by David Landau
Florida State University College of Law

It is an honor to respond to Richard Albert’s provocative Article on Constitutional Amendment and Dismemberment. Albert’s Article brings together a range of recent scholarship showing that constitutional actors often use ordinary amendment tools or other mechanisms short of full constitutional replacement in order to undertake far-reaching changes that go to the core of a constitutional order. Albert conceptualizes this phenomenon as “dismemberment” rather than amendment and theorizes about when and how it should be regulated. Both the vocabulary and the theory should be a significant reference point for future work in the field.

In the course of his Article, Albert critiques what he calls a “standard” theory of constitutional change. By this he means the theory that draws a sharp distinction between the “constituent” power (that exercised by a people when creating constitution) and the “constituted” power (that exercised by constitutionally authorized representatives when amending a constitution). This distinction often underlies the recent phenomenon of courts enforcing limits on amendment power by invoking an unconstitutional constitutional amendment (UCA) doctrine or similar device. Albert attacks the theoretical foundation of the doctrine and its normative and practical implications. My major aim here is to rescue the UCA doctrine from Albert’s attack, and to argue that it is actually a significant tool in a world with his own normative concerns.

Albert critiques the standard division between constituted and constituent power on which the UCA doctrine is often—although not necessarily—said to rest. He suggests that the constituent power of the “people” is too vague a concept on which to hang this theoretical distinction. More concretely, he warns that the UCA doctrine threatens to over-incentivize constitution-making because it allows courts to block changes short of replacement. Frequent constitution-making, especially outside of the existing constitutional order, may prove to be highly destabilizing.

Albert instead calls for a more nuanced scheme of constitutional change embedded in the constitutional text. As he has done in prior work, he argues that the best solution is an escalating system of constitutional change written into the constitution itself. This scheme would give increasingly robust protection to core constitutional values by requiring especially onerous procedures to alter them. Such a textual scheme is optimal from the standpoint of constitutional design because it may channel more forms of change within the constitutional order. It also gives courts more legitimacy and grounding in enforcing limits to the amendment power. Indeed, Rosalind Dixon and I recently pointed out the increasing prevalence of these “tiered” constitutional designs and gave thoughts on their architecture and utility in a range of circumstances.

But when, as is often the case, constitutional amendment rules are not tiered, what should courts do? The UCA doctrine emerges, in this circumstance, as a second-best solution. The UCA and a tiered textual scheme are in fact fairly close relatives. The UCA doctrine allows courts to develop a relatively crude form of tiering inferred from the constitution by effectively requiring that certain changes to the “basic structure” or “core values” go through a constitution-making process, rather than using the normal amendment rules. The UCA doctrine in this sense is not a perfect replacement for a well-designed tiered scheme, but in many circumstances it will be better than leaving the gates wide open for constitutional dismemberment through a single-track, non-tiered amendment rule.

Albert recognizes this problem, but the solution he suggests is closer to the UCA doctrine than he acknowledges. Albert calls for political and judicial actors to create an implicitly tiered scheme whenever an explicit one is absent, based on two guiding principles. His first key principle is the “mutuality rule.” This rule requires that the most demanding procedure to change core constitutional values should be, as a presumptive matter, roughly equivalent to the procedure that brought the existing constitutional norms into being. Second, he emphasizes that the judicial role should be constructive rather than prohibitive—and thus essentially advisory—although unanimous or overwhelming judicial decisions should receive special respect.

The UCA doctrine, as practiced in most countries, is close to meeting Albert’s criteria. First, it often satisfies his mutuality criterion. Where core norms were originally put into the constitutional order through a process (such as approval by a constituent assembly plus referendum), a requirement that substantial changes to core norms also be done through constitution-making may effectively necessitate a similar process. Even in the absence of formal restraints on constitution-making, regional models and past national experience tend to act as a rough guide for constitution-making. This means that were political actors to employ the mutuality doctrine, it isn’t clear that it would constitute a significant change from current understandings or practices.

Additionally, the UCA doctrine should rarely be treated as truly prohibitive or as constituting the absolute “final word.”  Instead, the doctrine is better seen as what Dixon and I have called a “speed bump.” Realistically, the UCA doctrine can slow change a bit, perhaps giving time for a new political configuration to emerge, but the doctrine cannot block change indefinitely. This is because political actors can often find workarounds: they can proceed with constitutional replacement, or more commonly, they can exert influence over the court through appointments and other devices. In practice, the UCA doctrine can create some breathing space but cannot act as a permanent blockade.

Properly understood, then, the UCA doctrine functions quite similarly to Albert’s proposal for an advisory judicial role. In both, judicial decisions simply provide breathing space and an opportunity for reflection. The question then becomes which approach—Albert’s advisory judicial role or the UCA doctrine—more effectively serves this function. That is, which approach offers more opportunity for reflection and more effectively serves as a “speed bump?” A full answer demands both an empirical perspective and an attention to context. In some circumstances, political actors might be significantly influenced by a judicial decision advising certain procedures to legitimize changes to core constitutional norms. But the contexts in which radical changes are made to constitutions will often make such circumstances unrealistic. These are often contexts in which political leaders are seeking to consolidate power and to undermine—rather than advance—rule of law norms. Certainly this is true of the “abusive constitutionalism” examples that Albert cites, such as Hungary, where sweeping constitutional changes are being used to undermine the liberal democratic order. To a lesser degree, it may be true of other cases as well, such as the ongoing saga of the Japanese pacifism clause.

In conflictual circumstances characterized by institutional instability and attempted consolidation of power, harder-edged doctrines like the UCA doctrine can be quite useful. In Colombia, for example, President Alvaro Uribe’s quest to stay in power appeared unstoppable until the Constitutional Court’s Decision C-141 of 2010, which stated that a proposed constitutional change allowing three consecutive presidential terms was an unconstitutional constitutional amendment (Espinosa & Landau, p. 352). Had Uribe already consolidated more political power, he might have been able to circumvent the ruling, either by replacing the existing constitution or by packing or curbing the Court. But as it happened, the decision revealed weaknesses in Uribe’s coalition, and a range of actors around him quickly announced that they would comply with the decision. In short, the decision worked to provide more time for reflection as to whether allowing a president to serve for twelve straight years was a good idea. Political elites and the broader populace used the time provided by the decision to work their way to a negative answer. In that context, it is difficult to see a softer or more advisory opinion playing the same role.

The point is certainly not that all the focus should be on courts. Political actors, civil society, and popular protests can be and often are involved in enforcing “tiered” designs or implied limits to constitutional change. But a relatively robust judicial role seems in many circumstances to be both desirable and difficult to avoid. Albert’s solution—an escalating textual scheme for constitutional change—is a case in point. Even where the text sets out multiple tracks for different sorts of constitutional change, courts will still be called upon to determine which track is appropriate in which circumstances. For example, under Article 74 of the South African Constitution, a court must decide whether a change impacts the specially-protected core principles such as “dignity;” under Article 443 of the Ecuadorian Constitution, a court must determine whether changes affect the “fundamental structure” of the State or “set constraints on rights” and thus require more demanding procedures for change.

On methods for drawing the amendment-dismemberment line, Albert argues against limits on constitutional change that are overly normative in nature, such as criteria that exclusively protect the institutions and norms of liberal democracy. He also suggests that criteria should be drawn from domestic experience, rather than transnational norms. These criteria, of course, affect the way in which the UCA doctrine or other limits should be conceptualized and enforced.

Albert correctly emphasizes that there are different varieties of constitutionalism, although most countries around the world now seem to use at least the form, if not the practice, of liberal democratic constitutionalism. My own recent work has focused on the defense of liberal democratic constitutions from the increasingly prevalent erosion into “hybrid” or quasi-authoritarian status. When Dixon and I defend the potential utility of the UCA doctrine, for example, we explicitly do so only in the context of a threatened liberal democratic constitutional order. Our call for engagement with transnational norms and institutions recognized by other liberal democracies is thus confined to that context. Within that context, transnational engagements may help judges identify what is truly fundamental to their constitutional systems, lending their judgments greater sociological legitimacy. To be sure, some aspects of constitutional identity are truly local, but liberal democratic constitutions would seem to have a shared interest in remaining liberal democratic constitutions. Transnational experience may help to identify a shared liberal democratic minimum core.

Albert’s theory of dismemberment is itself normative, as it must be. He privileges constitutional stability in order to avoid potentially uncontrolled constitution-making. This drives his preference for constitutional transition through change internal rather than external to the existing constitutional order. He also privileges a “popular will” or consent-based conception of democracy, which drives his “mutuality” criterion. But both criteria complicate construction of a general theory of constitution-making that runs across all varieties of constitutionalism. For example, both constitutional stability and “popular will” may work differently in authoritarian variants of constitutionalism. The normative case for giving special protection to core constitutional norms, thus stabilizing them, may look much weaker when those norms form the nucleus of an authoritarian regime.[1] The argument that democratic will or consent, embodied in certain procedural mechanisms like a constituent assembly or referendum, underlies authoritarian constitution-making also seems problematic. Neutrality on forms of dismemberment is undesirable, and dismemberment of an authoritarian constitution should likely not be held to the same standard as dismemberment of a liberal democracy. Requiring onerous procedures for changing an authoritarian legal order may prolong repression rather than expression of popular will.

In short, the descriptive phenomenon of dismemberment is one that is truly global in scope. Albert’s Article has given us the vocabulary and conceptual tools to identity a significant practice that is occurring across all types of constitutional orders. But the normative implications of that practice may vary sharply depending on the constitutional starting point, and I have argued that the UCA doctrine is an important tool at least for defending liberal democratic forms of constitutionalism.  Albert’s analysis of these issues is certain to serve as the foundation of much future work on the forms and implications of constitutional change.

[1] There may of course be a pragmatic case for continuity with the prior regime in transitions from authoritarian to democratic constitutional orders. As Arato’s post-sovereign model of constitution-making emphasizes, such an approach may help to build trust and increase buy-in from affiliates of the old regime who are necessary for a successful transition. For similar reasons, there may also be a pragmatic case for gradualness in dismantling some authoritarian orders (consider the long Chilean constitutional transition as an example), but forcing people to live with authoritarian constitutional enclaves is normatively problematic.

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