University of Texas at Austin - School of Law; University of Texas at Austin - Department of Government; Université Paris II - Panthéon-Assas; Universidad de Especialidades Espíritu Santo; Universidad Externado de Colombia - Facultad de Derecho; São Paulo Law School of Fundação Getulio Vargas FGV DIREITO SP; University of Toronto - Faculty of Law; University of Ottawa - Faculty of Law; Reichman University - Interdisciplinary Center (IDC) Herzliyah - Harry Radziner School of Law; Airlangga University; Yale University; Maharashtra National Law University Mumbai
Date Written: October 26, 2016
The distinction between amendment and revision is foundational to our present understanding of formal constitutional change. Scholars have suggested how to differentiate amendment from revision, constitutional designers have entrenched distinct procedures for each, and judges have applied both of these concepts to actual cases and controversies. Yet even at its best the distinction is unclear and it raises more questions than it offers answers. My purpose in this invited contribution to the Edward Elgar Handbook on Comparative Constitution-Making is to clarify the distinction between amendment and revision from a perspective internal to the scholarship on constitutional change. I suggest with reference to jurisdictions as varied as Belize, Canada the Czech Republic and India that an amendment should be understood as an effort to continue the constitution-making project that began at the founding moment, while a revision should be understood as an effort to unmake the constitution by introducing an extraordinary change that is inconsistent with the fundamental presuppositions of the constitution. I conclude by suggesting that our reinterpretation of the distinction between amendment and revision nonetheless remains susceptible to exploitation.
Keywords: Constitutional Amendment, Constitutional Change, Constitutional Revision, Constitutional Replacement, Constitutional Founding, Constitutional Revolution, Amendment, Revision, Constitutional Moments, Belize, Canada, Czech Republic, India, United States, Comparative Constitutional Law
Suggested Citation: Suggested Citation
Albert, Richard, Amendment and Revision in the Unmaking of Constitutions (October 26, 2016). Edward Elgar Handbook on Comparative Constitution-Making (David Landau & Hanna Lerner, eds., 2017 Forthcoming), Boston College Law School Legal Studies Research Paper No. 420, Available at SSRN: https://ssrn.com/abstract=2841110 or http://dx.doi.org/10.2139/ssrn.2841110
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