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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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Measuring Amendment Difficulty

Measuring Amendment Difficulty

Chapter:
(p.95) 3 Measuring Amendment Difficulty
Source:
Constitutional Amendments
Author(s):

Richard Albert

Publisher:
Oxford University Press
DOI:10.1093/oso/9780190640484.003.0004

Which constitution is the world’s most difficult to amend? Scholars of comparative constitutional law almost uniformly have the same answer: the U.S. Constitution. It has been amended relatively few times since its creation in 1787, thousands of amendment proposals have failed, and today it seems virtually impossible to amend. Is this enough to prove that the U.S. Constitution is the hardest to amend? This chapter examines rankings of amendment difficulty that focus on the codified rules of amendment, and concludes that none of them is a reliable ordering of relative rigidity and moreover that all of them have a fatal flaw: they fail to account for nontextual sources of amendment ease or difficulty. These nontextual sources include uncodified changes to formal amendment rules, popular veneration for the constitution, temporal variability in amendment difficulty, and prevailing cultures of amendment. The chapter shows that three different cultures of amendment can either exacerbate or assuage amendment difficulty: amendment culture as an accelerator of change, as a redirector of change, and as an incapacitator of change. This chapter also illustrates how and theorizes why formal amendment rules are sometimes modified in ways that ultimately remain invisible to scholars who take a narrow text-based approach to measure amendment difficulty. The chapter concludes both that rankings of amendment difficulty are doomed to failure and that they may not be worth the effort. This chapter considers constitutions from around the globe.

Keywords:   amendment culture, codification, constitutional amendment, constitutional conventions, constitutional flexibility, constitutional rigidity, informal amendment, liberum veto, Progressive Era, Donald Lutz

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