University of Texas at Austin
Richard Albert tells us about his book Constitutional Amendments: Making, Breaking, and Changing Constitutions.
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Tell us a little bit about the book.
Constitutional Amendments: Making, Breaking, and Changing Constitutions (OUP 2019) is both a roadmap for navigating the intellectual universe of constitutional amendment and a blueprint for building and improving the rules of constitutional change. Drawing from dozens of jurisdictions in every region of the world, I seek in the book to answer two all-important questions: what counts as an amendment, and how should constitutional designers structure the procedures of constitutional change?
The first matters now more than ever. Reformers are exploiting the rules of constitutional amendment, testing the limits of legal constraint, undermining the norms of democratic government, and flouting the constitution as written to create entirely new constitutions that masquerade as ordinary amendments.
The second is central to the performance and endurance of constitutions. Constitutional designers today have virtually no resources to guide them in constructing the rules of amendment, and scholars do not have a clear portrait of the significance of amendment rules in the project of constitutionalism.
Amendment rules open a window into the soul of a constitution, exposing its deepest vulnerabilities and revealing its greatest strengths. Constitutional Amendments: Making, Breaking, and Changing Constitutions shows that no part of a constitution is more important than the procedures we use to change it. The codification of amendment rules, often placed at the end of the text, proves that last is not always least.
What inspired you to take up this project?
I have been writing about constitutional amendment for over a decade, since I was a graduate student at the University of Oxford and then at Harvard University.
But my curiosity about constitutional amendment goes back even further. I remember quite vividly the precise moment when the seeds were planted for what would become my primary academic interest in studying constitutional change.
The day was October 30, 1995. I was at home in Orleans, just east of Ottawa, the Canadian national capital, watching the results of the Quebec secession referendum broadcast live on television.
As I watched the yes and no sides exchanging leads, the phone rang. It was a football coach from Yale University calling to recruit me to attend Yale as a student-athlete. In the course of our conversation, I told him about the secession referendum still underway in Quebec that night, and he told me about the American experience with secession in the Civil War era. I was riveted by the comparisons and contrasts between the two countries. I ultimately attended Yale University, and stayed there for law school, where I learned about the Reconstruction Amendments from some of the finest scholars in the field, and later returned home to Canada to serve as a law clerk for the Chief Justice of the Supreme Court just a few years after it had issued its advisory opinion on whether Quebec can unilaterally secede from the country.
The big questions I asked so many years ago are the same ones that fascinate me still today. I seek to answer them in this book.
Whose work was influential on you throughout the course of the project?
There really are too many to enumerate. I say that in all honesty. I have been blessed in my field with an abundance of riches – so many scholars who are pushing the boundaries of our current knowledge in important and innovative ways, and whose work has helped shape mine.
But I will mention one person whose writings have been an essential guide for my understanding of both how constitutions change and how they should. Sanford Levinson, my colleague here at The University of Texas at Austin, has been writing about the most important questions in constitutional amendment for many years. His ideas on constitutional amendment are among the ones that have made the biggest impact on me. He blends high theory with applied learning in his scholarship in a way that few others can do as well. His remarkable range across law and political science is one that I will never achieve, but it is what I have set as my standard, unreachable for me to be sure.
What challenges did you face in writing the book?
As I was nearing completion of the book, I found that my chapters on “informal” amendment were making it difficult to keep the same thread running smoothly from start to finish. I decided to remove those chapters from this book and to set them aside for a future project focusing exclusively on uncodified changes to constitutions.
One of those chapters benefitted quite considerably from an invaluable workshop organized by Yasmin Dawood at the University of Toronto. Seated around the table was a range of top-flight scholars: Ben Berger, Kate Glover Berger, Grant Huscroft, Dan Priel, and Nelson Wiseman. I am really excited about getting back to that project given how much more closely scholars are paying attention to unwritten constitutional norms in our present day.
What do you hope to see as the book’s contribution to academic discourse and to constitutional or public law more broadly?
In the book, I intervene in many of the pressing questions currently occupying scholars in public law, including how to protect democratic institutions, what should be the role of courts in the process of constitutional reform, and whether theory can make sense of the idea of an unconstitutional amendment.
But I devote much of the book to a question for which there are surprisingly few comprehensive answers in the scholarly literature: how should we design the rules of constitutional amendment?
In Constitutional Amendments: Making, Breaking, and Changing Constitutions , I draw from my experience advising constitution-makers and -changers to offer a comprehensive blueprint for building an amendment procedure. I explain and illustrate that amendment rules are organized around four sets of fundamental choices, each involving a different stage in amendment design. The first is a set of choices about the foundations of the polity, while the second requires a choice among distinct pathways to initiate, propose, and ratify an amendment. The third is a set of decisions about the specifications that will put the amendment foundations and pathways into operation. And the fourth concerns the form of codification: how will amendments be recorded in the constitution or, for an uncodified constitution, in the constitutional order? What is most useful, I think, is the detail offered to constitutional designers on how to sequence these four sets of fundamental choices as they build amendment rules specifically suited to their own local history, experience, and ambitions for the state and its people.
Now that my book has been published, I am rewarding myself with a tour of the best BBQ restaurants here in Austin. I am hosting many visitors on campus this year, and they too will get to experience the many flavours of the city.
In addition, I have several ongoing scholarly collaborations, and these will take up much of my time in the year ahead. I am working with my dear friend Yaniv Roznai on a book about constitutionalism under extreme conditions, for instance during times of war or economic stress. With my fellow Canadians Kate Glover Berger, Michael Pal and Wade Wright, I am undertaking a major project that imagines how one might rewrite the Constitution of Canada. And I am exploring with my fellow expatriate Leonid Sirota the provocative and quite interesting possibility of codifying a constitution for Quebec.
I am also looking forward to reading a lot. My focus will continue to be on early-career scholars in public law with whom I am not yet acquainted. I make it a priority to familiarize myself with their drafts and works-in-progress because they light the path to new directions in the field. I am always looking for ways to include early-career scholars in the scholarly projects that I organize so I invite early-career scholars to contact me if I can be helpful in some way.
Richard Albert is a William Stamps Farish Professor in Law and Professor of Government at the University of Texas at Austin.