Amendment and Revision in the Unmaking of Constitutions

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

Abstract

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

Richard Albert (Contact Author)

University of Texas at Austin - School of Law ( email )

727 East Dean Keeton Street
Austin, TX 78705
United States
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University of Texas at Austin - Department of Government ( email )

College of Liberal Arts
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Austin, TX 78712
United States

Université Paris II - Panthéon-Assas ( email )

12 place du Pantheon
Paris cedex 06, 75231
France

Universidad de Especialidades Espíritu Santo ( email )

Facultad de Derecho
Av. Samborondón 5
Samborondón, 092301
Ecuador

Universidad Externado de Colombia - Facultad de Derecho

Calle 12 # 1-17 este
Calle 12 0 83
Bogota D.C, Cundinamarca 3456
Colombia

São Paulo Law School of Fundação Getulio Vargas FGV DIREITO SP

R. Rocha, 233, Bela Vista
São Paulo, 01330-000
Brazil

University of Toronto - Faculty of Law ( email )

78 and 84 Queen's Park
Toronto, Ontario M5S 2C5
Canada

University of Ottawa - Faculty of Law ( email )

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Ottawa, Ontario K1N 6N5
Canada

Reichman University - Interdisciplinary Center (IDC) Herzliyah - Harry Radziner School of Law ( email )

P.O. Box 167
Herzliya, 46150
Israel

Airlangga University

Dharmawangsa Dalam Selatan
Surabaya, East Java 60286
Indonesia

Yale University

493 College St
New Haven, CT CT 06520
United States

Maharashtra National Law University Mumbai ( email )

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Hiranandani Gardens, Powai, Mumbai 400076
Maharashtra
India