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The Expressive Function of Constitutional Amendment Rules Revista De Investigações Constitucionais, Vol Revista de Investigações Constitucionais E-ISSN: 2359-5639 [email protected] Universidade Federal do Paraná Brasil ALBERT, RICHARD The expressive function of constitutional amendment rules Revista de Investigações Constitucionais, vol. 2, núm. 1, enero-abril, 2015, pp. 7-64 Universidade Federal do Paraná Curitiba, Brasil Available in: http://www.redalyc.org/articulo.oa?id=534056245002 How to cite Complete issue Scientific Information System More information about this article Network of Scientific Journals from Latin America, the Caribbean, Spain and Portugal Journal's homepage in redalyc.org Non-profit academic project, developed under the open access initiative Licenciado sob uma Licença Creative Commons Licensed under Creative Commons Revista de Investigações Constitucionais ISSN 2359-5639 DOI: http://dx.doi.org/10.5380/rinc.v2i1.43100 The expressive function of constitutional amendment rules* A relevante função das regras de mudança constitucional RICHARD ALBERT** Boston College Law School (United States of America) [email protected] Recebido/Received: 24.11.2014 / November 24th, 2014 Aprovado/Approved: 10.12.2014 / December 10th, 2014 Resumo Abstract A presente pesquisa enfoca a questão de como as mu- The current scholarly focus on informal constitutional danças constitucionais informais obscureceram a per- amendment has obscured the continuing relevance of manente relevância das regras de alteração formal da formal amendment rules. In this article, I return our atten- Constituição. Nesse artigo, retoma-se a atenção para as tion to formal amendment in order to show that formal mudanças formais com o intuito de demostrar que as re- amendment rules—not formal amendments but formal gras de alteração formal – não as alterações formais, mas amendment rules themselves—perform an underappre- as próprias regras de alteração – desempenham uma ciated function: to express constitutional values. Drawing função subestimada: expressar valores constitucionais. from national constitutions, in particular the Canadian, Delineando o tema a partir de Cons-tituições nacionais, South African, German, and United States constitutions, I em particular a canadense, a sul-africana, a alemã e a es- illustrate how constitutional designers may deploy formal tadunidente, ilustra-se como os constituintes podem im- amendment rules to create a formal constitutional hierar- plantar regras de alteração formal da Constituição para chy that reflects special political commitments. That formal criar uma hierarquia constitucional formal que reflita amendment rules may express constitutional values is both Como citar esse artigo/How to cite this article: ALBERT, Richard. The expressive function of constitutional amendment rules. Revista de Investigações Constitucionais, Curitiba, vol. 2, n. 1, p. 7-64, jan./abr. 2015. DOI: http://dx.doi.org/10.5380/rinc. v2i1.43100 * This project was supported by the Boston College Law School Fund. This article first appeared in Volume 59:2 of the McGill Law Journal, published in 2013. For helpful comments and conversations, I thank Carlos Bernal-Pulido, Brannon Denning, Rosalind Dix- on, Oran Doyle, Tom Ginsburg, Claudia Haupt, Ran Hirschl, Rick Kay, Mark Kende, David Landau, Will Partlett, Vlad Perju, Arie Rosen, Yaniv Roznai, Ozan Varol, Tom Kohler, and John Vile. I am grateful for the useful suggestions and criticisms I received from the three anonymous external reviewers who recommended this submission for publication. I have also benefitted from presenting earlier versions of this article at Indiana University–McKinney School of Law, the University of San Francisco Law School, the 2013 Annual Meeting of the Law & Society Association, and in the 2012–13 AADS works-in-progress lecture series at Boston College. I am also grateful to the editors of the McGill Law Journal for their outstanding editorial contributions to this article. ** Associate Professor at Boston College Law School (Boston, USA), where he specializes in constitutional law and comparative constitutional law. Juris Doctor – J.D. (Yale University); Bachelor of Civil Law – B.C.L. (Oxford University); Master of Laws – LL.M. (Har- vard University). In 2010, he received the Hessel Yntema Prize, which is given annually to a scholar under the age of 40 to recognize “the most outstanding article” on comparative law. Richard Albert is Book Reviews Editor for the peer-reviewed American Journal of Comparative Law, an elected member of the International Academy of Comparative Law, an elected member of the Executive Committee of the American Society of Comparative Law, a member of the Governing Council of the International Society of Public Law, a Distinguished Academic Associate at the Centre for Law and Religion at Cardiff Law School, a Senior Research Fellow at the Council for Canadian Democracy, and a founding editor of I-CONnect, the new scholarly blog of the International Journal of Constitutional Law (I-CON). E-mail: [email protected] Revista de Investigações Constitucionais, Curitiba, vol. 2, n. 1, p. 7-64, jan./abr. 2015. 7 Richard Albert determinados compromissos políticos. O fato de que re- a clarifying and a complicating contribution to their study. gras de alteração formal possam expressar valores cons- This thesis clarifies the study of formal amendment rules by titucionais é uma contribuição simultaneamente elucida- showing that such rules may serve a function that scholars tiva e complicadora para o seu estudo. Essa tese elucida o have yet to attribute to them; yet it complicates this study estudo das regras de alteração formal ao demonstrar que by indicating that the constitutional text alone cannot pro- tais regras podem servir a um propósito que a doutrina ve whether the constitutional values expressed in formal ainda não as atribuiu; porém ela complica o estudo ao in- amendment rules represent authentic or inauthentic poli- dicar que o texto constitucional por si só não é capaz de tical commitments. provar se os valores constitucionais expressos em regras de alteração formal representam compromissos políticos autênticos ou inautênticos. Palavras-chave: regras de mudança constitucional; re- Keywords: constitutional amendment rules; formal gras formais de alteração constitucional; valores consti- amendment rules; constitutional values; constitutional hie- tucionais; hierarquia constitucional; entrincheiramento rarchy; formal entrenchment. formal. CONTENTS 1. Introduction; 2. The Functions of Constitutional Amendment Rules; 2.1. Why Entrench Formal Amendment Rules? 2.2. Values in the Constitutional Text; 3. Constitutional Values and Formal Amendment Rules; 3.1. Creating a Constitutional Hierarchy; 3.2. Constitutional Values and Constitutional Hierarchy; 3.3. Constitutional Hierarchy in Formal Amendment Rules; 4. The Authenticity of Formal Entrenchment; 4.1. Purpose and Perception; 4.2. Designing Constitutional Values; 4.3. Interpreting Constitutional Values; 5. Conclusion; 6. References. 1. INTRODUCTION Formal constitutional amendment rules are largely corrective. Recognizing that a deficient constitution risks building error upon error until the only effective repair becomes revolution,1 constitutional designers entrench formal amendment rules that can be used to peacefully correct the constitution’s design.2 Fixing defects is therefore an essential function of formal amendment rules. Political actors generally deploy for- mal amendment rules to “amend” a constitution — from the Latin verb “emendare”— in order to “free [it] from fault” or to “put [it] right.”3 Yet formal amendment rules do more than entrench a procedure for perfecting apparent imperfections in the written consti- tution: they may also serve the underappreciated function of expressing constitutional values. 1 LOEWENSTEIN, Karl. Reflections on the Value of Constitutions in Our Revolutionary Age. In: ZURCHER, Arnold J (Org.). Constitutions and Constitutional Trends Since World War II. New York: New York University Press, 1951. p. 191-215. 2 BURGESS, John W. Political Science and Comparative Constitutional Law I: Sovereignty and Liberty. Boston: Ginn & Co, 1893.p. 137. 3 GARNER, Bryan A. Modern American Usage, 3 ed. New York: Oxford University Press, 2009. p. 41. 8 Revista de Investigações Constitucionais, Curitiba, vol. 2, n. 1, p. 7-64, jan./abr. 2015. The expressive function of constitutional amendment rules Much of the current scholarship on constitutional amendment explores infor- mal amendment.4 This focus, while important, has obscured the continuing relevance of formal amendment rules. Consider formal and informal amendment practices in the United States. Today it is difficult,5 if not virtually inconceivable,6 to gather the superma- jorities needed to formally amend the United States Constitution pursuant to Article V.7 That there have been only twenty-seven textual additions to the Constitution since 1789—and of those, ten were packaged as the Bill of Rights—reveals just how rarely political actors have resorted to the constitution’s formal amendment procedures.8 Spurred by the difficulty of constitutional change through Article V,9 political actors 4 An informal amendment occurs “when political norms change, or courts (possibly responding to political pres- sures) ‘interpret’ or construct the constitution so as to bring it in line with policy preferences” (GINSBURG,Tom; POS- NER, Eric A. Subsconstitutionalism. Stanford Law Review, California, vol. 62, p.1583-1600, 2010.) There is vast body of scholarship on informal amendment. See e.g. ACKERMAN, Bruce. We the People
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