Document Type

Article

Publication Date

2017

Abstract

In Quasi-Constitutional Amendments, Professor Richard Albert provides an insightful and nuanced description of how constitutional change can occur through an informal process that he calls “quasi-constitutional amendment.” Quasi-constitutional amendments are “sub-constitutional changes” to existing constitutional norms that can become functionally entrenched even though they are formally vulnerable to ordinary statutory repeal or modification. Professor Albert observes that quasi-constitutional amendment is the byproduct of high barriers to formal amendment. In this essay, I briefly explore the extent to which high barriers to formal amendment are the driving force behind other informal processes of constitutional change; especially informal change through constitutional litigation. Conventional theories of constitutional design suggest that informal processes, especially transformative judicial rulings, occur mostly because formal amendment is too difficult. I am skeptical of these assumptions; at least at the level of generality and universality that they often operate, and especially as they apply to constitutional litigation as a pathway to change. My skepticism is based mostly on anecdotal evidence suggesting that the interaction between formal and informal processes of constitutional change is more complicated and nuanced than these theories suggest. There is evidence, for example, that even when formal amendment is cheap and frequent, idiosyncrasies in political culture can drive some constitutional issues towards informal processes. Constitutional age might also play a role. As societies stabilize and prosper under a particular constitution, they might be less inclined to make explicit changes through formal amendment and instead prefer change to occur informally with a stronger appearance of continuity and stability. Finally, frequent formal amendment might alter the rules of the game for constitutional reformers in ways that catalyze rather than diminish formal amendment. All of these factors (and surely some others) suggest that the interaction between formal and informal processes of constitutional change is complex; perhaps even to the point of being mysterious.

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