Uncharted Terrain in Constitutional Amendment
What is an amendment? This chapter shows why this question is central to the study of constitutional change. Some constitutional changes are identified as amendments but in reality may be more. Whether a constitutional change is an amendment entails implications for how the change must be made, whether a court can and should evaluate its constitutionality, and what the change requires for legitimation. This chapter returns to the origins of formal amendment—to the Articles of Confederation, America’s first constitution, which codified the very first amendment rule in a national constitution—to uncover the foundations of amendment practice and what makes an amendment different from other constitutional changes. This chapter moreover raises a question about an increasingly common phenomenon that straddles the border of legality and legitimacy: the violation of amendment rules. This chapter explains that the Indian basic structure doctrine and Bruce Ackerman’s theory of constitutional moments are, at bottom, variations on the same theme we see all over the world: changes to amendment rules that occur in defiance of the rules of formal amendment. Many examples follow to illustrate this point. The chapter closes by describing and situating the importance of the chapters to follow in this book. This chapter considers constitutions from around the globe.
Keywords: amendment, Articles of Confederation, basic structure doctrine, constitutional amendment, constitutional design, constitutional moments, formal amendment, referendum, Venice Commission, unconstitutional constitutional amendment
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