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Research, writing, consulting on the rule of law, democracy,  and constitutionalism.

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New Paper on "The Formalist Resistance to Unconstitutional Constitutional Amendments"

6/26/2018

 
Our new paper is now available here. We think it will be an important paper that adds a new dimension to the discussion on unconstitutional constitutional amendments. Here, below, is the abstract.​ Comments are welcome.
--Richard Albert


The Formalist Resistance to Unconstitutional Constitutional Amendments
Many courts around the world have either asserted or exercised the power to invalidate a constitutional amendment. But we should not take the increasing prevalence of the doctrine of unconstitutional constitutional amendment as evidence of its appropriateness for all constitutional states. It is imperative that constitutional actors know that there is another answer to the question whether an amendment can be unconstitutional. We have three purposes in this Article, and we seek to fulfill each of them with reference to three jurisdictions in particular—France, Georgia and Turkey—whose constitutions and attendant constitutional practices have expressly rejected the doctrine in a way that reflects what we describe as their shared formalist resistance to the doctrine of unconstitutional constitutional amendment. We seek first to demonstrate that the doctrine of unconstitutional constitutional amendment has not yet matured into a global norm of constitutionalism. We seek also to explain how a jurisdiction that expressly rejects the idea of an unconstitutional constitutional amendment operates in the face an amendment that would otherwise be invalidated as unconstitutional in a jurisdiction that has adopted the doctrine. We finally seek to evaluate what is gained and lost in a constitutional state by rejecting the doctrine of unconstitutional constitutional amendment. We find that there are both democracy-enhancing and democracy-weakening features that follow from the choice to reject the doctrine outright. Our larger purpose is inherent in the project itself: to diversify our thinking about what risks becoming seen as a necessary feature of constitutionalism but that design and practice show plainly is not.

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  • Richard Albert
  • Biography
  • Books
  • The Leaflet
  • Philanthropy
    • Yvette Depestre Award
    • Frederick Albert Scholarship
    • Wilda and John Maase Prize in Canadian Studies
    • Jamie Cameron Bursary
    • Bloom-Greenfield Prize
    • John C. Major Scholarship
    • Annual Fundraiser for Haitian Children
  • Recommended Readings
  • Webinars
    • Courses
      • Advanced Research Seminar in Constitutional Change
      • Constitutional Amendment in Constitutional Democracies
      • Judging in Times of Crisis
      • The Future of Liberal Democracy
      • Modern Challenges in Constitutionalism
      • The State of Canada's Constitutional Democracy
      • The Theory and Design of Constitutional Change
    • Seminars
      • Constitutional Renewal in Chile
      • Amendment-Mania in Mexico
      • The Architecture of Constitutional Amendment
      • Constitutional Autocratization in Russia
      • Constitutional Reform in Kenya
      • Democracy in our Digital Age
      • Is the United States Constitution Broken?
      • Juristocracy in Brazil?
      • Reimagining Policing in America
      • Socialism and Constitutionalism
      • Substitution of the Constitution Doctrine in Colombia
    • Discussion
      • Doctoral Workshop on Constitutional Amendment
      • Global Colloquium in Constitutional Law
      • The Living Presidency
      • Supreme Disorder
    • Advice
      • How to Write a Book Proposal
      • The Law Faculty Hiring Process
      • Clerking at the Supreme Court of Canada
      • Publishing in Constitutional Law
      • Writing a Book Proposal
  • Best of Books
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