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Books

Constitutional Amendments: Making, Breaking, and Changing Constitutions (Oxford University Press, 2019)

Constitutional Amendments: Making, Breaking, and Changing Constitutions is both a roadmap for navigating the intellectual universe of constitutional amendments and a blueprint for building and improving the rules of constitutional change. Drawing from dozens of constitutions in every region of the world, this book blends theory with practice 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 question 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. This book shows that no part of a constitution is more important than the procedures we use change it. Amendment rules open a window into the soul of a constitution, exposing its deepest vulnerabilities and revealing its greatest strengths. The codification of amendment rules often at the end of the text proves that last is not always least.

The Oxford Handbook of Caribbean Constitutions (Oxford University Press 2020) (co-edited with Derek O'Brien and Se-shauna Wheatle)

The Oxford Handbook of Caribbean Constitutions offers a detailed and analytical view of the constitutions of the Caribbean region, examining the constitutional development of its diverse countries. The Handbook explains the features of the region's constitutions and examines themes emerging from the Caribbean's experience with constitutional interpretation and reform. Beginning with a Foreword from the former President of the Caribbean Court of Justice and an Introduction by the lead editor, Richard Albert, the remainder of the book is divided into four parts. Part I, "Caribbean Constitutions in the World," highlights what is distinctive about the constitutions of the Caribbean. Part II covers the constitutions of the Caribbean in detail, offering a rich analysis of the constitutional history, design, controversies, and future challenges in each country or group of countries. Each chapter in this section addresses topics such as the impact of key historical and political events on the constitutional landscape for the jurisdiction, a systematic account of the interaction between the legislature and the executive, the civil service, the electoral system, and the independence of the judiciary. Part III addresses fundamental rights debates and developments in the region, including the death penalty and socio-economic rights. Finally, Part IV features critical reflections on the challenges and prospects for the region, including the work of the Caribbean Court of Justice and the future of constitutional reform. This is the first book of its kind, bringing together in a single volume a comprehensive review of the constitutional development of the entire Caribbean region, from the Bahamas in the north to Guyana and Suriname in South America, and all the islands in between. While written in English, the book embraces the linguistic and cultural diversity of the region, and covers the Anglophone Caribbean as well as the Spanish-, French-, and Dutch-speaking Caribbean countries.

Constitutional Change and Transformation in Latin America (Hart 2019) (co-edited with Carlos Bernal and Juliano Zaiden Benvindo)

Over the past 30 years, Latin America has lived through an intense period of constitutional change. Some reforms have been limited in their design and impact, while others have been far-reaching transformations to basic structural features and fundamental rights. Scholars interested in the law and politics of constitutional change in Latin America are turning increasingly to comparative methodologies to expose the nature and scope of these changes, to uncover the motivations of political actors, to theorise how better to execute the procedures of constitutional reform, and to assess whether there should be any limitations on the power of constitutional amendment. In this collection, leading and emerging voices in Latin American constitutionalism explore the complexity of the vast topography of constitutional developments, experiments and perspectives in the region. This volume offers a deep understanding of modern constitutional change in Latin America and evaluates its implications for constitutionalism, democracy, human rights and the rule of law.

Founding Moments in Constitutionalism (Hart 2019) (co-edited with Menaka Guruswamy and Nishchal Basnyat)

Founding moments are landmark events that break ties with the ancien régime and lay the foundation for the establishment of a new constitutional order. They are often radically disruptive episodes in the life of a state. They reshape national law, reset political relationships, establish future power structures, and influence happenings in neighbouring countries. This edited collection brings together leading and emerging scholars to theorise the phenomenon of a founding moment. What is a founding moment? When does the 'founding' process begin and when does it end? Is a founding moment possible without yielding a new constitution? Can a founding moment lead to a partial or incomplete transformation? And should the state be guided by the intentions of those who orchestrated these momentous breaks from the past? Drawing from constitutions around the world, the authors ask these and other fundamental questions about making and remaking constitutions.

Constitutionalism under Extreme Conditions: Law, Emergency, Exception (Springer 2020) (co-edited with Yaniv Roznai)

This book examines the problem of constitutional change in times of crisis. Divided into five main parts, it both explores and interrogates how public law manages change in periods of extraordinary pressure on the constitution. In Part I, “Emergency, Exception and Normalcy,” the contributors discuss the practices and methods that could be used to help legitimize the use of emergency powers without compromising the constitutional principles that were created during a period of normalcy. In Part II, “Terrorism and Warfare,” the contributors assess how constitutions are interpreted during times of war, focusing on the tension between individual rights and safety. Part III, “Public Health, Financial and Economic Crises,” considers how constitutions change in response to crises that are neither political in the conventional sense nor violent, which also complicates how we evaluate constitutional resilience in times of stress. Part IV, “Constitutionalism for Divided Societies,” then investigates the pressure on constitutions designed to govern diverse, multi-national populations, and how constitutional structures can facilitate stability and balance in these states. Part V, titled “Constitution-Making and Constitutional Change,” highlights how constitutions are transformed or created anew during periods of tension. The book concludes with a rich contextual discussion of the pressing challenges facing constitutions in moments of extreme pressure. 

Quasi-Constitutionality and Constitutional Statutes: Forms, Functions  and Applications (Routledge 2019) (co-edited with Joel Colon-Rios)

This book examines the interstices among statutory enactment, constitutional convention and  formal constitution in which quasi-constitutionality exists. It provides a focal resource that can serve as a point of reference for scholars interested in quasi-constitutionality as a whole, from national and transnational perspectives, expanding on its many forms, functions, and applications with recourse to comparative insights. The book is divided in three main Parts, each of them preceded by a separate critical introduction in which an informed scholar contextualizes the chapters and offers reflections on the themes they develop. The first Part, titled "Forms", is composed of chapters that address, from a theoretical and comparative perspective, questions related to the recognition of constitutional statutes and quasi-constitutional legislation. The second Part is titled "Functions", and contains chapters that explore the explanatory power of quasi-constitutionality in different institutional contexts. The third Part, titled "Applications", considers the ways in which constitutional statutes and quasi-constitutionality operate in relation to particular tensions and debates present in various jurisdictions.

Constitutional Reform of National Legislatures ( Edward Elgar 2019) (co-edited with Antonia Baraggia and Cristina Fasone)

Despite the importance of second chambers to the success of constitutional democracies around the world, today many fundamental questions about bicameralism remain understudied and undertheorized. What makes bicameral reform so difficult? Why choose bicameralism over unicameralism? What are the constitutional values of bicameralism? This innovative book addresses these questions and many more from comparative, doctrinal, empirical, historical and theoretical perspectives.

2018 Global Review of Constitutional Law (2019) (co-edited with David Landau, Pietro Faraguna, and Simon Drugda)

This is the third edition of the I·CONnect-Clough Center Global Review of Constitutional Law. This 2018 Global Review assembles detailed but relatively brief reports on constitutional developments and cases in 65 jurisdictions during the past calendar year. The reports are authored by academic and/or judicial experts, and often the reports are co-authored by judges and scholars. The reports in this first-of-its-kind volume offer readers systematic knowledge that, previously, has been limited mainly to local networks rather than a broader readership. By making this information available to the larger field of public law in an easily digestible format, we aim to increase the base of knowledge upon which scholars and judges can draw. We expect to repeat the project every year with new annual reports, and we hope over time that coverage will grow to an even wider range of countries. We invite scholars and jurists from the presently non-covered jurisdictions to contact us about contributing a report in next year’s Global Review.

The Foundations and Traditions of Constitutional Amendment (Oxford: Hart 2017) (co-edited with Xenophon Contiades and Alkmene Fotiadou)

This volume is designed to guide the emergence of comparative constitutional amendment as a distinct field of study in public law. Much of the recent scholarship in the field has been written by the scholars assembled in this volume. This book, like the field it hopes to shape, is not comparative alone; it is also doctrinal, historical and theoretical, and therefore offers a multiplicity of perspectives on a subject about which much remains to be written. This book aspires to be the first to address comprehensively the new dimensions of the study of constitutional amendment, and is a reference point for all scholars working on the subject. ​​

Revolutionary Constitutionalism: Law, Legitimacy, Power (Hart 2020)

This book, the result of a major international conference held at Yale Law School, contains contributions from leading scholars in public law who engage critically with Bruce Ackerman's path-breaking book, Revolutionary Constitutions: Charismatic Leadership and the Rule of Law. The book also features a rebuttal chapter by Ackerman in which he responds directly to the contributors' essays. Some advance Ackerman's theory, others attack it, and still others refine it – but all agree that the ideas in his book reset the terms of debate on the most important subjects in constitutionalism today: from the promise and perils of populism to the causes and consequences of democratic backsliding, from the optimal models of constitutional design to the forms and limits of constitutional amendment, and from the role of courts in politics to how we identify when the mythical 'people' have spoken. A must-read for all interested in the current state of constitutionalism.

The Law and Legitimacy of Imposed Constitutions (Routledge 2018) (co-edited with Xenophon Contiades and Alkmene Fotiadou)

Constitutions are often seen as the product of the free will of a people exercising their constituent power. This, however, is not always the case, particularly when it comes to ‘imposed constitutions’. In recent years there has been renewed interest in the idea of imposition in constitutional design, but the literature does not yet provide a comprehensive resource to understand the meanings, causes and consequences of an imposed constitution. This volume examines the theoretical and practical questions emerging from what scholars have described as an imposed constitution. A diverse group of contributors interrogates the theory, forms and applications of imposed constitutions with the aim of refining our understanding of this variation on constitution-making. Divided into three parts, this book first considers the conceptualization of imposed constitutions, suggesting definitions, or corrections to the definition, of what exactly an imposed constitution is. The contributors then go on to explore the various ways in which constitutions are, and can be, imposed. The collection concludes by considering imposed constitutions that are currently in place in a number of polities worldwide, problematizing the consequences their imposition has caused. Cases are drawn from a broad range of countries with examples at both the national and supranational level. This book addresses some of the most important issues discussed in contemporary constitutional law: the relationship between constituent and constituted power, the source of constitutional legitimacy, the challenge of foreign and expert intervention and the role of comparative constitutional studies in constitution-making. The volume will be a valuable resource for those interested in the phenomenon of imposed constitutionalism as well as anyone interested in the current trends in the study of comparative constitutional law.

2017 Global Review of Constitutional Law (2018) (co-edited with David Landau, Pietro Faraguna, and Simon Drugda)

This is the second edition of the I·CONnect-Clough Center Global Review of Constitutional Law. This 2017 Global Review assembles detailed but relatively brief reports on constitutional developments and cases in 61 jurisdictions during the past calendar year. The reports are authored by academic and/or judicial experts, and often the reports are co-authored by judges and scholars. The reports in this first-of-its-kind volume offer readers systematic knowledge that, previously, has been limited mainly to local networks rather than a broader readership. By making this information available to the larger field of public law in an easily digestible format, we aim to increase the base of knowledge upon which scholars and judges can draw. We expect to repeat the project every year with new annual reports, and we hope over time that coverage will grow to an even wider range of countries. We invite scholars and jurists from the presently non-covered jurisdictions to contact us about contributing a report in next year’s Global Review.

The Canadian Constitution in Transition (University of Toronto Press 2018) (co-edited Paul Daly and Vanessa MacDonnell)

The year 2017 marked the 150th anniversary of Confederation and the 1867 Constitution Act. Anniversaries like these are often seized upon as opportunities for retrospection. This volume, by contrast, takes a distinctively forward-looking approach. Featuring essays from both emerging and established scholars, The Canadian Constitution in Transition reflects on the ideas that will shape the development of Canadian constitutional law in the decades to come. Moving beyond the frameworks that previous generations used to organize constitutional thinking, the scholars in this volume highlight new and innovative approaches to perennial problems, and seek new insights on where constitutional law is heading.
Featuring fresh scholarship from contributors who will lead the constitutional conversation in the years ahead--and who represent the gender, ethnic, linguistic, and demographic make-up of contemporary Canada--The Canadian Constitution in Transition enriches our understanding of the Constitution of Canada, and uses various methodological approaches to chart the course toward the bicentennial.

An Unamendable Constitution? Unamendability in Constitutional Democracies (Springer 2018) (co-edited with Bertil Oder)

Modern constitutionalism has given rise to a paradox: can a constitutional amendment be unconstitutional? Today it is normatively contested but descriptively undeniable that a constitutional amendment—one that respects the formal procedures of textual alteration laid down in the constitutional text—may be invalidated for violating either a written or unwritten constitutional norm. This book examines the subject of constitutional unamendability from comparative, doctrinal, empirical, historical, political and theoretical perspectives. It explores and evaluates the legitimacy of unamendability in the various forms that exist in constitutional democracies.

Canada in the World: Comparative Perspectives on the Canadian Constitution (Cambridge University Press 2017) (co-edited David R. Cameron)

In this volume marking the Sesquicentennial of Confederation in Canada, leading scholars and jurists discuss the evolution of the Canadian Constitution since the British North America Act 1867; the role of the Supreme Court in interpreting the Constitution as a "living tree" capable of application to new legal issues; and the growing influence of both the Constitution, with its entrenched Charter of Rights and Freedoms, and the decisions of the Court on other constitutional courts dealing with a wide range of issues pertaining to human rights and democratic government. The contributors assess how the Canadian Constitution accommodates the cultural diversity of the country's territories and peoples while ensuring the universal applicability of its provisions; the role of the Court in interpreting and applying the Constitution; and the growing global influence of the Constitution and decisions of the Court on legislatures and courts in other countries.

Formas y función de la enmienda constitucional 
(Universidad Externado de Colombia 2017)

How should constitutional designers structure the rules of constitutional change? Surprisingly and unfortunately, scholars have offered little in the way of answers to this all-important question. Constitutional designers are instead left few academic resources to which they can turn for guidance in constructing the formal rules of constitutional amendment. This book is an effort to fill this deep void that has existed for far too long.

2016 Global Review of Constitutional Law (2017) (co-edited with David Landau, Pietro Faraguna, and Simon Drugda)

This is the inaugural edition of the I·CONnect-Clough Center Global Review of Constitutional Law. The 2016 Global Review assembles detailed but relatively brief reports on constitutional developments and cases in 44 jurisdictions during the past calendar year. The reports are authored by academic and/or judicial experts, and often the reports are co-authored by judges and scholars. The reports in this first-of-its-kind volume offer readers systematic knowledge that, previously, has been limited mainly to local networks rather than a broader readership. By making this information available to the larger field of public law in an easily digestible format, we aim to increase the base of knowledge upon which scholars and judges can draw. We expect to repeat the project every year with new annual reports, and we hope over time that coverage will grow to an even wider range of countries. We invite scholars and jurists from the presently non-covered jurisdictions to contact us about contributing a report in next year’s Global Review.

Cambio Constitucional Informal (Universidad Externado de Colombia 2016) (co-edited Carlos Bernal)

In this volume, authors explore the distinction between formal and informal constitutional amendment, focusing on amendment by interpretation, legislation, treaty, executive action, sub-national political practice, desuetude and others.

Canadian Constitutional Law (5th ed. Emond 2016) (co-edited as part of the Constitutional Law Group)

This leading casebook on Canadian constitutional law is rooted in the idea that understanding constitutional history is critical to understanding the present and future of Canadian constitutional law.  Covering all subjects in Canadian constitutional law, this casebook features contributions from many of Canada's most influential scholars of public law.

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Articles

Enforcing Constitutional Conventions, 17 International Journal of Constitutional Law 1146 (2020) (co-authored with Farrah Ahmed and Adam Perry)

In an earlier article, we disproved the three claims central to the dominant view in the study of constitutional conventions: that there is a shared “Commonwealth approach” to constitutional conventions; that Commonwealth courts will recognize and employ conventions but never enforce them; and that conventions are sharply distinguishable from rules of law. We drew from Canada, India, and the United Kingdom to demonstrate that Commonwealth courts have recognized, employed, and indeed also enforced conventions. In this article, we turn from the descriptive to the normative, arguing, again in contrast with the dominant view, that Commonwealth courts sometimes should enforce conventions. We argue that courts should act as executors of the will and judgment of constitutional actors, and limit themselves to enforcing only power-shifting conventions: conventions which transfer power from those who have legal power to those who can legitimately wield it. In playing this role, judges uphold the legitimate allocation of power—legitimate, not according to judges but according to constitutional actors themselves.

Judging Constitutional Conventions, 17 International Journal of Constitutional Law 787 (2019) (co-authored with Farrah Ahmed and Adam Perry)

The study of constitutional conventions is anchored in three assumptions that have so far remained largely unchallenged: that there is a shared “Commonwealth approach” to constitutional conventions; that Commonwealth courts will recognize and employ conventions but never enforce them; and that conventions are always distinguishable from rules of law. After setting out a new taxonomy of modes of judicial engagement with constitutional conventions, we overturn each of these assumptions. We draw on recent case law from Canada, India, and the United Kingdom to show that there is no shared “Commonwealth approach” to the treatment of constitutional conventions. We show that some Commonwealth courts do, in fact, enforce conventions. Finally, we show that at least some constitutional conventions have crystallized into law. These insights disrupt much of what is foundational in the study of constitutional conventions.

The Case for Presidential Illegality in Constitutional Amendment, 67 Drake Law Review 857 (2020)

The current amendment stasis in the United States raises a serious question with potentially grave consequences for the American project of constitutional democracy: has the Constitution seen its last amendment? The answer is quite likely yes—if the extraordinary level of political disagreement in the country remains as high as it is now. But this affirmative answer presupposes that reformers will continue to consider themselves bound by the codified rules in Article V. What if instead reformers come to believe the political climate makes it necessary to pursue unconventional methods to break through the barriers standing in the way of a constitutional amendment? Freed from their strict fidelity to the rigid rules in Article V, reformers might ultimately innovate a new path to formal constitutional change. This strategy would of course invite the powerful claim that reformers were acting illegally. But could their breach of Article V be simultaneously illegal yet legitimate? In this invited contribution for a symposium held at Drake Law School on the topic “Is it Time to Amend the Constitution?,” I suggest the answer is yes, provided reformers justify their violation of Article V as both a return to the popular sovereigntist beginnings of modern American constitutional democracy and an essential step to ensure the Constitution remains responsive to the needs of the country and reflective of the people’s values.

The Formalist Resistance to Unconstitutional Constitutional Amendments, 70 Hastings Law Journal 639 (2019) (co-authored with Malkhaz  Nakashidze and Tarik Olcay)

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.

Constitutional Amendment and Dismemberment, 43 Yale Journal of International Law 1 (2018)

Some constitutional amendments are not amendments at all. They are self-conscious efforts to repudiate the essential characteristics of a constitution and to destroy its foundations. And yet we commonly identify transformative changes like these as constitutional amendments no different from others. 

A radically transformative change of this sort is not a constitutional amendment. It is a constitutional dismemberment. A constitutional dismemberment is a deliberate effort to disassemble one or more of the constitution’s constituent parts, whether codified or uncodified, without breaking the legal continuity that is necessary if not useful for maintaining a stable polity. Dismemberment seeks to transform the identity, the fundamental values or the architecture of the constitution.

In this Article, I introduce and theorize the phenomenon, concept, doctrine and theory of constitutional dismemberment. Drawing from jurisdictions around the world—Brazil, Canada, Colombia, Honduras, India, Ireland, Jamaica, Japan, New Zealand, Saint Lucia, Taiwan, Turkey, the United Kingdom, the United States, the Caribbean and the European Union—I explain how constitutional dismemberment responds to the major challenges in constitutional change today. How should constitutional designers structure the rules of constitutional change? How may political actors legally and legitimately formalize transformative changes to a constitution? Should courts review the constitutionality of constitutional amendments? And how may we redeem the foundational theory of constituent power to give it some purchase in modern constitutionalism? The theory of constitutional dismemberment offers a suite of pragmatic solutions to these enduring puzzles in the modern study of constitutional change and in the design of its procedures.​

The Structure of Constitutional Amendment Rules, 49 Wake Forest Law Review 913 (2014)

The structure of formal constitutional amendment rules has received little scholarly attention. Constitutional designers therefore have few academic resources to guide them in designing the rules of formal amendment—perhaps the most important part of any constitution. In this Article, I fill that void by creating a new classification of formal amendment rules based on my analysis of formal amendment rules in constitutional democracies. I explain and illustrate that formal amendment rules are conceptually structured in three tiers: (1) foundations, which either entrench or are silent on the distinction between constitutional amendment and revision; (2) frameworks, consisting of one of six combinations of comprehensive, restricted or exceptional single-track or multi-track procedures; and (3) specifications, which supplement amendment foundations and frameworks with voting thresholds, quorum requirements, subject-matter restrictions, temporal requirements, electoral preconditions and defense mechanisms. I also show how constitutional designers may use this classification to manage federalism, express constitutional values, enhance or diminish the judicial role, and pursue democratic outcomes related to governance, constitutional endurance, and amendment difficulty. My larger purpose is to enliven the study of formal amendment rules by generating a research agenda into their structure and uses, and the options they present to constitutional designers.

The Expressive Function of Constitutional Amendment Rules, ​59 McGill Law Journal 225 (2013)

The current scholarly focus on informal amendment has obscured the continuing relevance of formal amendment rules. In this Article, I return our attention to formal amendment in order to show that formal amendment rules--not formal amendments but formal amendment rules themselves--perform an underappreciated function: to express constitutional values. Drawing from national constitutions, in particular the Canadian, South African, German and United States Constitutions, I illustrate how constitutional designers may deploy formal amendment rules to create a formal constitutional hierarchy that reflects special political commitments. That formal amendment rules may express constitutional values is both a clarifying and complicating contribution to the study of formal amendment rules. It clarifies the study of formal amendment rules by showing that formal amendment rules may serve a function that scholars have yet to attribute to them. Yet it complicates the study of formal amendment rules by showing that the constitutional text alone cannot prove whether the constitutional values expressed in formal amendment rules represent authentic or inauthentic political commitments.

Nonconstitutional Amendments, ​22 Canadian Journal of Law and Jurisprudence 5 (2009)

The constitutional text in a constitutional democracy does not necessarily constrain constitutional change. Quite the contrary, constitutional change in a constitutional democracy often occurs in ways that depart from the rigid procedures governing constitutional amendment enshrined in the text of the constitution. In this article, I illuminate this peculiar phenomenon in comparative perspective, drawing from the constitutional traditions of Canada, Germany, India, South Africa and the United States. In addition to illuminating distinctions in the amendment practices of liberal democratic constitutional states, I deploy those contrasts as a springboard to substantive insights about fundamental principles of statehood, namely sovereignty and legitimacy.

How Unwritten Constitutional Norms Change Written Constitutions,
​38 Dublin University Law Journal 387 (2015)

Written constitutions are susceptible to informal changes that do not manifest themselves in alterations to the text, for instance as a result of judicial interpretation, legislative enactment or executive action. This phenomenon is well developed in the scholarly literature on constitutional change and informal constitutional amendment. But what remains understudied and undertheorized in Canada and the United States is how written constitutions change informally as a result of the development of an unwritten constitutional norm, otherwise known as a constitutional convention. In this Article, I hypothesize with reference to the Canadian and United States Constitutions that there exist two major categories of informal constitutional change by constitutional convention: incorporation and repudiation. I suggest also that incorporation and repudiation may each occur in two ways: incorporation may occur by filling an existing void in the constitutional text or by refining one of its existing provisions, and repudiation may result from creating a void in the constitutional text or from substituting one of its existing provisions. I then evaluate whether these four forms informal constitutional change by constitutional convention entail costs to the rule of law where constitutional meaning is rooted in the present public meaning of the constitutional text. My larger purpose in this Article is to invite a dialogue with comparative public law scholars on how unwritten constitutional norms change written constitutions so that we may ultimately better understand the forms and implications of unwritten constitutional change.

Amending Constitutional Amendment Rules, 13 International Journal of Constitutional Law 655 (2015) 

No part of a constitution is more important than the rules that govern its amendment and its entrenchment against it. Given the important functions served by formal constitutional amendment rules, we might expect constitutional designers to entrench them against ordinary amendment, for instance by requiring a higher-than-usual quantum of agreement for their amendment or by making them altogether unamendable. Yet relatively few constitutional democracies set a higher threshold for formally amending formal amendment rules. In this Article, I demonstrate that existing written and unwritten limits to formally amending formal amendment rules are unsatisfactory, and I offer modest textual entrenchment strategies to insulate formal amendment rules against ordinary formal amendment in constitutional democracies where the constitutional text exerts an appreciable constraint on political actors. I draw from historical, theoretical and comparative perspectives to suggest that two principles—intertemporality and relativity—should guide constitutional designers in designing formal amendment rules in constitutional democracies.

Constitutional Amendment by Constitutional Desuetude, 62 American Journal of Comparative Law 641  (2014) 

Scholars have shown that written constitutions may be informally amended in various ways, for instance by judicial interpretation, statute, or executive action. But scholars have yet to fully appreciate that written constitutions may also be informally amended by desuetude. Informal amendment by constitutional desuetude occurs when a constitutional provision loses its binding force upon political actors as a result of its conscious sustained nonuse and public repudiation by political actors. Though it is a species of informal amendment, constitutional desuetude possesses unique properties. Constitutional desuetude reflects the informal repeal of a constitutional provision as a result of the establishment of a new constitutional convention. Despite its obsolescence, the desuetudinal constitutional provision remains entrenched in the constitutional text. Consequently, although informal amendment generally leaves the constitutional text entrenched, unchanged and politically valid, this particular variation of informal amendment leaves the text entrenched and unchanged but renders it politically invalid. In this paper, I illustrate and theorize the phenomenon of informal amendment by constitutional desuetude with reference to the Canadian Constitution, I construct an analytical framework for identifying constitutional desuetude in other jurisdictions, I distinguish constitutional desuetude from other forms of obsolescence, and I also explore the costs of constitutional desuetude.

Constitutional Disuse or Desuetude: The Case of Article V, 94 Boston University Law Review 1029 (2014)

Article V of the United States Constitution is in decline and disuse. Studies of comparative formal amendment difficulty, the decelerating pace of Article V amendments, and the relative infrequency of Article V amendments in the modern era--the most recent having been ratified roughly one generation ago, and the next-most recent a generation earlier--confirm the impression that Article V’s federalist supermajority requirements make the United States Constitution one of the world’s most difficult to amend formally. The consequence of formal amendment difficulty has been to reroute political actors pursuing constitutional change from formal to informal amendment. The attendant decline and disuse of Article V as a vehicle for constitutional amendment suggests that Article V may itself have changed informally. In this Article, I explore whether Article V has been informally amended by constitutional desuetude.

Temporal Limitations in Constitutional Amendment, 21 Review of Constitutional Studies 37 (2016)

Formal amendment rules are designed to fragment or consolidate power, whether among political parties or government branches, or along ethnic, subnational, or other lines. Time is an understudied and undertheorized dimension along which amendment rules may also fragment or consolidate power. This temporal feature of formal amendment rules entails unique implications for how we understand the formation of constitutional consensus and how we evaluate contemporaneity in amendment ratification. In this Article, I apply a comparative perspective to the use of time in formal amendment in order to demonstrate the possibilities for the design of temporal limitations and also to probe the trade-offs between political brinkmanship and contemporaneity in ratification. My larger purpose is to suggest a research agenda for further comparative inquiry into the use of time in the design of formal amendment rules.

The Difficulty of Constitutional Amendment in Canada, 39 Alberta Law Review 85 (2015)

Scholars of comparative constitutional law would suggest that the United States Constitution is the world’s most difficult democratic constitution to change by formal amendment. But in this paper I suggest that the Constitution of Canada may be even harder to amend. Modern Canadian political history has proven the textual requirements for major constitutional amendment so far impossible to satisfy, yet the extraordinary difficulty of formal amendment in Canada derives equally from sources external to the Constitution’s formal amendment rules. Major constitutional amendment also requires conformity with extra-textual requirements imposed by Supreme Court decisions interpreting the Constitution of Canada, parliamentary and provincial as well as territorial statutes, and arguably also by constitutional conventions—additional rules that may well make major constitutional amendment impossible today in Canada. These as-yet underappreciated extra-textual sources of formal amendment difficulty raise important questions for Canadian constitutionalism, namely whether in making the Constitution virtually impossible to amend they weaken democracy and undermine the purpose of writtenness.

Four Unconstitutional Constitutions and their Democratic Foundations,
​50 Cornell International Law Journal 169 (2017)

The present fascination with the global phenomenon of an unconstitutional constitutional amendment has left open the question whether a constitution can be unconstitutional. Invalidating a single amendment for violating the architectural core of a constitution is an extraordinary action, but it is occurring with increasing frequency around the world. But to call an entire constitution unconstitutional, however, seems different in both kind and degree. In this Article, I illustrate and evaluate four different conceptions of an unconstitutional constitution. Each conception draws from a different constitution currently in force around the world, specifically the Constitutions of Canada, Mexico, South Africa and the United States. What unites all four conceptions of an unconstitutional constitution is that each instantiation, despite its unconstitutionality in different senses of the concept, nonetheless traces its roots to democratic foundations. The strength of these foundations, however, varies as to each.

Amendment and Revision in the Unmaking of Constitutions, Edward Elgar Research Handbook on Comparative Constitution-Making (David Landau and Hanna Lerner,  eds., 2020)

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.

​The Conventions of Constitutional Amendment in Canada, 53 Osgoode Hall Law Journal 399 (2016)  

Commentators have suggested that the unsuccessful national referendum to ratify the 1992 Charlottetown Accord has created an expectation of popular participation requiring national referendal consultation in major reforms to the Constitution of Canada. In this Article, I inquire whether federal political actors are bound by a constitutional convention of national referendal consultation for formal amendments to the basic structure of the Constitution of Canada. Drawing from the Supreme Court of Canada’s Patriation Reference, I suggest that we cannot know whether federal political actors are bound by such a convention until they are confronted with the question whether or not to hold a national referendum in connection with a change to the Constitution’s basic structure. I conclude by suggesting, perhaps counterintuitively, that layering a conventional requirement of national referendal consultation onto the existing requirements for formal amendments to the Constitution’s basic structure could well undermine democracy, despite our common association of referenda with democratic legitimacy. I suggest instead that a national referendum should be an alternative path, not an additional step, in constitutional amendment.

​Constitutional Handcuffs,
​42 Arizona State Law Journal 663 (2010)

To withhold from citizens the power of constitutional amendment is to withhold more than a mere procedural right. It is to hijack their most basic of all democratic rights. Nothing is more democratically objectionable than dispossessing citizens of the power to rewrite the charter governing the boundary separating the citizen from the state, and citizens from themselves. Sequestering this democratic right commandeers the sovereignty that gives democracy its meaning and throws away the key to unlock the handcuffs that constitutions fasten to the wrists of citizens.

With the enduring tension pitting constitutionalism versus democracy as my backdrop, I endeavor in this paper to make three contributions to the scholarly literature. First, I improve the theoretical foundations of constitutional entrenchment by defining the varying degrees of constitutional permanence. Second, I develop an original taxonomy of entrenchment clauses, beginning with what I call preservative entrenchment, transformational entrenchment and reconciliatory entrenchment. And, third, in reaching the conclusion that entrenchment undermines the participatory values that give constitutionalism its meaning, I propose an alternative to entrenchment that I call the entrenchment simulator. In contrast to entrenchment clauses that render constitutional amendments a constitutional impossibility, the entrenchment simulator provides a promising alternative that both embraces the expressive function of entrenchment and remains consistent with the promise of constitutionalism.

How a Court Becomes Supreme, 77 Maryland Law Review 181 (2017)

High courts around the world have increasingly invalidated constitutional amendments in defense of their view of democracy, answering in the affirmative what was once a paradoxical question with no obvious answer: can a constitutional amendment be unconstitutional? In the United States, however, the Supreme Court has yet to articulate a theory or doctrine of unconstitutional constitutional amendment. Faced with a constitutional amendment that would challenge the liberal democratic values of American constitutionalism—for instance an amendment to restrict political speech or to establish a national religion in the United States—the Court would be left without a strategy or vocabulary to protect the foundations of constitutional democracy in the United States. In this Article prepared for the annual “Constitutional Law Schmooze” at the University of Maryland, I sketch eight strategies the Court could deploy in order to defend of American constitutional democracy—and to make itself truly supreme by immunizing its judgments from reversal by constitutional amendment.

Time and Change in Constitutional Amendment, Time, Law, and Change: An Interdisciplinary Study (Sophia Ranchordas & Yaniv Roznai, eds., 2020)

We cannot understand constitutional change without understanding its relation to time. Yet the temporal dimension of constitutional amendment remains understudied and undertheorized, despite the prevalence of democratic constitutions that require political actors to adhere to certain specifications as to the timing of various steps in the amendment process, whether at the initiation, proposal or ratification stages, or indeed all of these steps. For example, amendment rules sometimes establish deliberation floors or ceilings to compel political actors to consider an amendment proposal during a defined period of time, establishing either a minimum or maximum period of deliberation. Amendment rules sometimes also create safe harbour provisions that altogether prohibit political actors from proposing amendments for a defined period of time, either after a new constitution has come into force or after an amendment has failed or succeeded. In this chapter, I explore and evaluate the use of temporal limitations in constitutional amendment from a comparative perspective. 

The Fusion of Presidentialism and Parliamentarism, 57 American Journal of Comparative Law 531 (2009) 

No question of constitutional design is more intensely debated than whether emerging democracies should adopt presidential or parliamentary systems. This is an important debate but it misses a critical point about constitutional design--namely that the structural differences between presidentialism and parliamentarism conceal much more than they reveal. In this Article, I demonstrate precisely how conventional accounts of the structural differences between presidentialism and parliamentarism actually obscure their functional similarities.

Presidential Values in Parliamentary Democracies, 
​8 International Journal of Constitutional Law 207 (2010) 

Constitutional theory has long regarded the separation of powers as unique to presidential systems and incompatible with parliamentary ones. In this Article, I suggest that the core values of the separation of powers are achievable in both presidential and parliamentary systems, contrary to the conventional wisdom which insists that the separation of powers is the exclusive province of presidentialism. This conclusion--that parliamentary and presidential systems are comparably receptive to the practical and philosophical strictures of the separation of powers – unlocks interesting possibilities for rethinking constitutional structure anew.

Constitutional Reform in the Caribbean, 16 Election Law Journal 263 (2017)

Some of the most fascinating developments in comparative public law have occurred over the last decade in the countries of the Caribbean, many having undertaken, successfully or not, historic processes of constitutional reform. Yet these developments have remained largely unexplored by scholars in the field outside of the region itself. In this Article, I offer an overview of some of the election-related recommendations made by special constitutional commissions convened by their governments to advise broadly on constitutional reform. My objective is twofold: first, to explain some of the momentous constitutional changes that may await the region; and second, to invite scholars of comparative public law to become more closely engaged with the Caribbean, a region that is ripe for comparative study and one that offers new possibilities for the study of constitutionalism beyond the conventional list of countries that today feature all too frequently in most if not all major studies of comparative public law.

Quasi-Constitutional Amendments, 65 Buffalo Law Review 739 (2017)

The difficulty of formal amendment in constitutional democracies has given rise to an increasingly common phenomenon: quasi-constitutional amendments. These are sub-constitutional changes that do not possess the same legal status as a constitutional amendment, that are formally susceptible to statutory repeal or revision, but that may achieve constitutional status over time as a result of their subject-matter. The impetus for a quasi-constitutional amendment is an intent to circumvent onerous rules of formal amendment in order to alter the operation of a set of existing norms in the constitution. Where constitutional actors determine, correctly or not, that the current political landscape would frustrate their plans for a constitutional amendment to entrench new policy preferences, they resort instead to sub-constitutional means whose successful execution requires less or perhaps even no cross-party or inter-institutional coordination. This strategy sometimes results in significant changes that have the functional effect though not the formal result of a constitutional amendment. In this Article, I illustrate this phenomenon with reference to the Constitution of Canada, though I stress at the outset that we can observe this phenomenon elsewhere in the world.

Constitutional Amendment by Stealth, ​60 McGill Law Journal 673 (2015)

Constitutional amendment ordinarily channels public deliberation through formal, transparent and predictable procedures designed to express the informed aggregated choices of political, popular and institutional actors. Yet the Government of Canada’s proposed senator selection reforms concealed a democratically problematic strategy to innovate an informal, obscure and irregular method of constitutional amendment: constitutional amendment by stealth. There are three distinguishing features of constitutional amendment by stealth—distinctions that make stealth amendment stand apart from other types of informal constitutional change: the circumvention of formal amendment rules, the intentional creation of a convention, and the twinned consequences of both promoting and weakening democracy. Constitutional amendment by stealth occurs where political actors consciously establish a new democratic practice whose repetition is intended to compel their successors into compliance. Over time, this practice matures into an unwritten constitutional convention, and consequently becomes informally entrenched in the constitution, though without the democratic legitimacy we commonly associate with an amendment. In this Article, I theorize constitutional amendment by stealth from legal, theoretical and comparative perspectives, and consider its consequences for the rule of law.

American Exceptionalism in Constitutional Amendment, 69 Arkansas Law Review 217 (2016) (symposium issue)

The American traditions of constitutional amendment raise contrasts and continuities with constitutional amendment in much of the rest of the democratic world. On the one hand, the United States Constitution stands apart from many foreign democratic constitutions for its extraordinary formal amendment difficulty, for not entrenching any current form of formal unamendability, and for resisting the global trend toward the doctrine of unconstitutional constitutional amendment. On the other hand, state constitutions in the United States more closely resemble the world’s democratic constitutions: they are freely susceptible to formal amendment, they entrench current forms of formal unamendability, and they recognize the doctrine of unconstitutional constitutional amendment. Constitutional amendment in the United States is therefore peculiar in entrenching both departures from and convergences with constitutional amendment in the larger democratic world. In this Article prepared for a symposium on “State Constitutional Change,” I explore how American state constitutions differ from the United States Constitution yet resemble the world’s other democratic constitutions in how they structure constitutional amendment. I conclude with thoughts on the organizing logic of constitutional amendment under the United States Constitution.

The Unamendable Core of the United States Constitution, Comparative Perspectives on the Fundamental Freedom of Expression (Andras Koltay, ed., 2015) ​

Nothing in the United States Constitution is today formally unamendable. Yet it is worth asking whether the Constitution requires some form of implicit unamendability in order to survive according to its own terms. In this paper, I inquire whether anything in the Constitution--whose constitutional text, history and interpretation are rooted in the concept of popular sovereignty--should be regarded as informally unamendable. I conclude that, if the Constitution is to remain internally coherent, the informal unamendability of the First Amendment’s democratic rights may be a condition precedent to the Constitution’s promise of robust democracy. I nevertheless express some doubt about how political actors might reliably enforce an informally unamendable First Amendment. I suggest in closing that the optimal function of unamendability in modern constitutionalism is its expressive capacity, specifically that unamendability is more effective as a declaration of importance than as a referent for judicial enforceability.

The Theory and Doctrine of Unconstitutional Constitutional Amendment in Canada, 41 Queen's Law Journal 153 (2015)

It has become increasingly common for courts in constitutional democracies to invalidate constitutional amendments. Courts have enforced both written and unwritten limits on how political actors may exercise the formal amendment power. They have relied either on constitutional texts that expressly entrench provisions against formal amendment or on their own interpretation of these texts as implicitly establishing an unalterable constitutional core. Although the Supreme Court of Canada has not yet invalidated a constitutional amendment, modern case law provides the constitutional basis for the Court to declare that a future constitutional amendment violates either the text or spirit of the Constitution of Canada. In this Article, I trace the origins and evolution of the theory and doctrine of unconstitutional constitutional amendment, I explain how the theory and doctrine may apply today in Canada, and I suggest a detailed framework to evaluate when and how the Supreme Court of Canada may exercise the extraordinary residual constitutional authority to invalidate a constitutional amendment.

Constructive Unamendability in Canada and the United States, 67 Supreme Court Law Review 181 (2014) 

Democratic constitutions often entrench provisions against formal amendment. For example, republicanism is formally unamendable in Italy, as is federalism in Germany, political pluralism in Portugal, and secularism in Turkey. Neither the Canadian Constitution nor the United States Constitution entrenches a similar form of formal unamendability. But both entrench a peculiar form of unamendability that results from neither constitutional design nor constitutional law but from constitutional politics. Constructive unamendability derives from a political climate that makes it practically unlikely, though not theoretically impossible, to meet the high thresholds the constitution sets for formal amendment unless constitutional politics somehow perform heroics. Faced with the constructive unamendability of a rule they wish to formally amend, political actors may resort to arguably legal though illegitimate methods to circumvent the strictures preventing formal amendment. In this Article, I classify the many forms of unamendability, I develop the concept of constructive unamendability, I illustrate that the Senate in both Canada and the United States is constructively unamendable, and I suggest how Canadian and American political actors might illegitimately amend the constructively unamendable Senate, a strategy the Government of Canada intended to pursue before the Supreme Court of Canada repudiated its Senate reform efforts in the recent Senate Reference.

Constitutional Limits to European Integration, 14 International Journal of Constitutional Law 297 (2016) (Review)

In this book review, I situate the importance of  “Les limites constitutionnelles à l’intégration européenne,” ​by Jean-Philippe Derosier.

Counterconstitutionalism,
​33 Dalhousie Law Journal 1 (2008)

Democratic constitutionalism has often erected a high barrier separating the citizen from the state. This is paradoxical because the very promise of constitutionalism is to produce precisely the opposite result: to bind the citizen to the state, and to create and cultivate a constitutional culture that is anchored in participatory democracy. I have a name for this paradoxical state of affairs: counterconstitutionalism. In this article, I introduce and illustrate the concept of counterconstitutionalism with reference to bills of rights in constitutional states representing civil and common law traditions on four continents.

The Progressive Era of Constitutional Amendment, Eficiência e Ética na Administração Pública (Luiz Alberto Blanchet et al., eds., 2015)

As hard as it is today to amend the United States Constitution—and empirical studies confirm that it is one of the hardest democratic constitutions to amend, if not the hardest, in the entire world—the United States Constitution was once thought too easy to amend. During the Progressive Era, a period of social activism and institutional reform from the 1890s through the 1920s, the United States adopted four constitutional amendments in a short span of roughly 10 years: the Sixteenth Amendment, authorizing a direct income tax; the Seventeenth Amendment, establishing direct elections to the United States Senate; the Eighteenth Amendment, imposing prohibition; and the Nineteenth Amendment, constitutionalizing women’s suffrage. In this Essay prepared for a conference on corruption and institutional design in comparative perspective, I explore the impetus for the Seventeenth Amendment, which was in large measure driven by an effort to curb corruption in senatorial elections. Today, roughly one hundred years since the entrenchment of the Seventeenth Amendment, there appears to be some support to repeal it. The challenge, however, is that it is much harder today than before to formally amend the Constitution.

Constitutional Reform in Brazil: Lessons from Albania?, 4 Revista de Investigações Constitucionais 11 (2017) (co-authored with Juliano Zaiden Benvindo, Klodian Rado and Fabian Zhilla)

Corruption is a fact of public life in Brazil. Since the country’s transition to democracy, corruption has been a challenge for each presidential administration. The Brazilian judiciary has not escaped the corrupting influences in the region. One country whose challenges with judicial corruption are arguably even greater than Brazil’s is Albania, a country for which we were appointed to act as Consultants to the Special Parliamentary Committee on the Reform of the Judicial System responsible for introducing major constitutional reforms aimed at curbing judicial corruption. Those reforms to the Albanian Constitution entered into force in 2016. Too little time has elapsed since then to evaluate whether these reforms will fulfill their purposes. And certainly much too little time has passed for us to know whether the reforms in Albania can be applied with any confidence elsewhere in the world where similar problems with judicial corruption continue to undermine democratic norms of transparency and accountability, namely in Brazil. We nonetheless believe it is useful to explain the Albanian constitutional reforms and to introduce them to readers in Brazil as available options for combatting judicial corruption.

Religion, Secularism and Limitations on Constitutional Amendment, Edward Elgar Research Handbook on Law and Religion (Rex Ahdar, ed.,  2019) (co-authored with Yaniv Roznai)

Constitutional designers often entrench religion and secularism against amendment. In this Chapter prepared for the Edward Elgar Research Handbook on Law and Religion, we explore the unamendability of religion and secularism in constitutions around the world. We begin, in Part I, with an overview of the formal unamendability of religion and secularism in codified constitutions. In Part II, we explore how religion and secularism in their unamendable forms have been interpreted; here we distinguish between formal unamendability entrenched in a codified constitution and informal unamendability that arises from judicial interpretation or political practice. We focus on the Constitutions of Canada, India, Iran and Turkey. Part III moves from the descriptive to the normative: we state the democratic objection to unamendability as well as the democratic defense of unamendability. We conclude with thoughts on the uses and misuses of unamendability, and its effectiveness in constraining political actors from exercising or refraining from exercising their delegated powers.

Discretionary Referenda in Constitutional Amendment, working draft, BC Legal Studies Research Paper No. 460

The unexpected results of recent referenda around the world have concealed an important similarity among many of them: the referenda were not constitutionally obligatory. For example, the Constitution of the United Kingdom does not require a referendum to authorize Brexit nor does the Colombian Constitution require one to ratify the FARC peace pact. Yet in both cases constitutional actors felt compelled by political imperatives to forego the settled rules of constitutional change in order to bring their constitutional change proposals directly to the people. This is not a rare practice: historically and recently, constitutional actors have often had recourse to referenda by choice rather than constitutional obligation as part of a larger strategy to legitimate a major constitutional change. In this paper, I draw from these kinds of non-obligatory referenda held around the world to develop a typology of discretionary referenda in constitutional amendment. I also examine why constitutional actors use discretionary referenda to amend the constitution and I situate their use against the backdrop of an increasingly observable phenomenon in democracies: the circumvention of formal amendment rules. This occurs when constitutional actors deliberately bypass the formal rules of constitutional change to amend the constitution, with recourse not only to referenda but to other modalities of constitutional change.

Single-Subject Constitutional Amendments, working draft, BC Legal Studies Research Paper No. 466

What makes a constitution difficult to amend? The answer varies across jurisdictions. In the United States, for example, the threshold problem is getting two-thirds of Congress to initiate an amendment—a virtual impossibility in our present day given that Congress has a hard enough time agreeing by a simple majority to pass a simple law. In Australia and Switzerland, it is largely the combination of subnational approval and referendal ratification that complicates matters. In Canada—the subject of this paper—constitutional amendment difficulty derives from similar challenges associated with initiation and ratification but perhaps even more from the use of omnibus amendment bills that combine the good with the bad and give political actors as much a reason to vote in favour as to vote against. In this paper prepared for a symposium on “Rewriting the Canadian Constitution,” I explore whether amending the Constitution of Canada could become easier under a new single-subject rule that prohibits omnibus amendment bills but permits multiple single-amendment bills only if voted on separately and differentiated by subject-matter. Imposing a single-subject rule for constitutional amendments in Canada is likely to make the Constitution much more flexible in some important ways but perhaps much more rigid in others.

Constitutions Imposed with Consent?, The Law and Legitimacy of Imposed Constitutions (Richard Albert, Xenophon Contiades and Alkmene Fotiadou, eds.,  2018)

Can a constitution be imposed with the consent of the peoples on which it is imposed? The conventional understanding of an imposed constitution—a constitution forced upon a people after war or conquest—rejects this possibility because the very nature of an imposed constitution denies that a community of peoples could divest itself of the power of self-determination associated with democratic constitution-making and -changing. Yet beyond contexts of war and conquest, we may consider constitutions to have been imposed also if they reflect some measure of heteronomy. Heteronomous constitutions are created, governed or adapted directly or indirectly by an external actor. This understanding of an imposed constitution accommodates both the conventional view of a constitution written or administered coercively by a victorious power for a vanquished state after war or conquest as well as those domestic constitutions born not of defeat but controlled in some way by an external actor exercising constitution-level decisionmaking authority. In this paper, I identify three categories of heteronomous constitutions imposed with consent—constitutions that are amended, adjudicated and interpreted by others—none quite the paradigmatic model of an indigenous constitution born of and governed by local actors but each one more a function of self-determined choice than a constitution imposed in war or conquest. Recognizing that a constitution can indeed be imposed with consent complicates our understanding of imposed constitutions and forces us to confront the reality that extraterritorial actors can sometimes be invited to occupy a central place in domestic constitutional law.

The Desuetude of the Notwithstanding Clause--And How to Revive It, Policy Change, Courts, and the Canadian Constitution (Emmett Macfarlane, ed., 2019)

The Supreme Court of Canada’s controversial invalidation of the Criminal Code prohibition on physician-assisted dying prompted suggestions that the federal government should invoke the Notwithstanding Clause to restore the law. Yet both the Harper and Trudeau Governments rejected this advice; the former refused to reenact the impugned law using the Notwithstanding Clause retrospectively; and the latter, newly-elected with a majority in October 2015, rejected the suggestion that it should pass its new law using the Notwithstanding Clause preemptively. It should come as no surprise that both governments took the same view of the Notwithstanding Clause. The reason why is clear but not easily explained: the Notwithstanding Clause has become politically toxic and is at risk of falling into constitutional desuetude, a phenomenon that afflicts a textually entrenched constitutional provision that political actors no longer see as politically usable despite there being no legal prohibition on its use. In this Chapter, I explain why the Notwithstanding Clause is at risk of desuetude, how this came to be, and also how political actors can halt its decline toward obsolescence in order to make it more likely that Parliament will in the future have a real choice whether or not to exercise the policymaking power that the Notwithstanding Clause confers upon it—rather than being compelled to accept the judgment of the Supreme Court of Canada as final and irreversible.

The Democratic Resilience of the Canadian Constitution, Constitutional Democracies in Crisis? (Mark Graber, Sanford Levinson, and Mark Tushnet, eds., 2018) (co-authored with Michael Pal)

In this Chapter prepared for the Oxford volume on “Constitutional Democracy in Crisis?” edited by Mark Graber, Sanford Levinson and Mark Tushnet, we advance three categories of institutional explanations for the resilience of Canadian constitutional democracy in the face of the increasingly global phenomenon of democratic decline. First, we show that Canada’s choice to chart its own unique course in the debate pitting presidentialism and parliamentarism has borne the fruits of democracy. Second, we demonstrate that Canada’s robust “democracy branch” has been both a source and driver of its democratic resilience. Third, we illustrate how the Supreme Court of Canada has managed to issue highly political and quite controversial decisions without becoming perceived as a partisan institution—making it an overtly political but not politicized institution. The upshot of our inquiry is that constitutional design—and not political culture alone—has been critical in reinforcing the democratic resilience of the Canadian Constitution. We conclude with some long-term challenges that we view as significant, despite Canada’s relatively enviable position among the countries of the world in our day.

The Cult of Constitutionalism, 39 Florida State University Law Review 373 (2012)

Constitutionalism compels and constrains all dimensions of our everyday lives in ways large and small that we often do not fully appreciate--perhaps because constitutions take many forms that we do not generally associate with constitutionalism. From the arts, sports, trade, entertainment, politics and war, constitutionalism is both the point of departure and the port of call. In this paper, I explore whether and how we might distinguish among these seemingly infinite types of constitutions.

The Separation of Higher Powers, 65 Southern Methodist University Law Review 3 (2012)

The very first words of the very first amendment to the United States Constitution continue to frustrate the quest for constitutional clarity. The Bill of Right’s Establishment Clause commands in plain terms that “Congress shall make no law respecting an establishment of religion,” but the legal interpretation and political implications of the Clause remain contested today as ever before. What may government require of religion? What may religion demand of government? How much of its independence must religion cede to government? And how closely may government collaborate with religion? These enduring questions admit of no definitive answers, at least not without an organizing logic that can bring coherence and purpose to the Establishment Clause. In this Article, I suggest that the concept of the separation of powers can help do just that. Using separation of powers theory, I construct a framework for clarifying the meaning of the Establishment Clause, giving political actors guidance for crafting policy pursuant to it, and making predictable its interpretation in courts.

Church and State in Western Society, 54 Journal of Church and State 652 (2012) (Review) 

In this book review, I critique "Church and State in Western Society," by Edward J. Eberle.

Religion-State Relations in the United States and Germany, 56 Journal of Church and State (2014) (Review)

In this book review, I comment on "Religion-State Relations in the United States and Germany," by Claudia E. Haupt.

The Constitutional Politics of the Establishment Clause,
​87 Chicago-Kent Law Review 867 (2012) (symposium issue)

In these reflections presented at a Symposium hosted by Duquesne University School of Law on The Future of the Establishment Clause in Context: Neutrality, Religion, or Avoidance? I examine the constitutional politics driving the interpretation of the Establishment Clause. I suggest that the Supreme Court’s recent case law on taxpayer standing may signal a return to the founding design of the Establishment Clause. At the founding, the Establishment Clause constrained the actions of only the national government, disabled only Congress from establishing a religion, and vigorously protected the sovereignty of states. Each of these three signposts--national interdiction, congressional disability, and state sovereignty--may yet again soon hold true if the Supreme Court continues on what appears to be its current path toward de-incorporating the Establishment Clause.

The Constitutional Politics of Presidential Succession, 39 Hofstra Law Review 497 (2011)   

The current line of presidential succession is no safer than playing presidential roulette. It imprudently privileges politics and tradition over competence and leadership. We should rethink the rules that currently govern succession to the Presidency--legal and constitutional rules that, in my view, serve the wrong institutional and political interests. The task I have given myself in these pages is to propose and defend an alternative to the current presidential succession regime: revising the order of succession to insert former living presidents--in reverse chronological order of service beginning with former presidents of the same party as the unavailable president--into the line of succession and concurrently removing the House Speaker and the Senate President pro tempore from the line of succession. Temporary presidential succession is a promising alternative to the current succession regime for several reasons that I endeavor to justify. Yet even if readers disagree with my proposed alternative to the current line of presidential succession, the larger purpose of my project nevertheless remains achievable: to probe the values that currently shape presidential succession and to invite reflection about whether they are the right ones for our time.

The Evolving Vice Presidency, 78 Temple Law Review 811 (2005)

It has long been the prerogative of a presidential nominee to bestow the Vice Presidency upon any constitutionally eligible individual without any measure of popular input or consent. This arrangement may have been tolerable in the past when the Vice President was a mere minion wielding only negligible influence upon the organs of government. But the modern power and prestige of the Vice Presidency--which now holds prime ministerial dominion in America and commands transnational authority--calls for the popular legitimization of the office. 

As the Vice Presidency continues to stand only one heartbeat from the Presidency in the precarious international context governing American interaction with friend and foe alike, the office can no longer defensibly remain the exclusive province of a political party's presidential nominee. The United States must democratize the Vice Presidency with some form of popular consent buttressing this focal post in American government, at last liberating the office from its crisis of popular illegitimacy.

The Next Constitutional Revolution, 88 University of Detroit Mercy Law Review 707 (2011) (symposium issue)

In these brief reflections presented at the University of Detroit Mercy Law Review’s March 2011 Symposium on “Celebrating an Anniversary: A Twenty-Year Review of Justice Clarence Thomas’ Jurisprudence and Contributions as an Associate Justice on the United States Supreme Court,” I advance the view that the history of the United States is a series of constitutional revolutions that have defined and redefined the nation and its people. I illustrate how constitutional revolutions have shaped the United States using three different examples of revolution leadership: legislative, presidential, and judicial. My objective is to suggest that America may now find itself on the cusp of yet another constitutional revolution – a modern conservative constitutional revolution that could change much of what lies at the foundation of the United States Constitution.

The constitutional revolutionary leading this transformative movement is neither a president nor a legislator nor an amorphous aggregation of political interests. It is instead a single, and indeed singular, individual who currently sits on the Supreme Court of the United States: Clarence Thomas. His judgments have come to constitute the intellectual core of a persistent movement to return the United States to its founding confederate design. The battle pitting nation-centric federalism versus state-centric confederalism may be the next frontier in American constitutional law.

Advisory Review, 45 Alberta Law Review 1037 (2008) 

The Notwithstanding Clause is the cornerstone of our Canadian constitutional architecture. It merges parliamentary supremacy and constitutional democracy. But the Notwithstanding Clause finds itself conceptually situated between illegitimacy and desuetude in a constitutional purgatory. This is not a promising portrait. Nonetheless, it is a blessing in disguise. The tragic failure of the Notwithstanding Clause is a fortuitous opportunity to create a new process to achieve its objectives while also remaining loyal to the intentions of its creators. That is the task I have given myself in this Article. This new process--which I call advisory review--is a new form of judicial review that is uniquely Canadian, born of Canadian roots, and consistent with Canadian constitutional traditions.

Constitutional Rights, Moral Controversy, and the Supreme Court, 51 Journal of Church and State 710 (2009) (Review)

In this book review, I comment on "Constitutional Rights, Moral Controversy, and the Supreme Court," by Michael J. Perry.

Secularism, Religion and Multicultural Citizenship, 52 Journal of Church and State 158 (2010) (Review)

In this book review, I critique "Secularism, Religion and Multicultural Citizenship," edited by Geoffrey Brahm Levey and Tariq Modood.

The Constitutional Imbalance, 37 New Mexico Law Review 1 (2007)

The Federalist Founding Fathers would not recognize the modern American judiciary. Far from being the least dangerous branch and even farther from being beyond comparison the weakest of the three departments of power—as the Federalist Papers famously predicted—the judiciary today wields much greater influence than the Federalists originally envisioned. The Federalists were wrong in their forecasts of the reach of the American judiciary. But the Anti-Federalists were right. They correctly predicted the role of the modern American judiciary.

The Anti-Federalists cautioned that judicial encroachments into the public square would undermine the American project of democracy and its promise of popular participation in public discourse. This Article explores the use of several constitutional devices in the service of American popular democracy. These devices have two purposes: first, to restore balance to the American constitutional order, and second, to bring the modern American judiciary into conformity with the more modest vision the Founding Fathers had when they created it.

Religion in the New Republic, 67 Louisiana Law Review 1 (2006)

Establishment Clause case law is incoherent in many consequential ways. Many point directly to the Supreme Court of the United States for this lamentable state of affairs. I disagree with this diagnosis. It is an inaccurate and incomplete criticism to blame the Supreme Court for the current landscape of establishment jurisprudence. Modern establishment doctrine--incoherent though it may be--is more properly viewed as an evolving product of the continuing public constitutional discourse among Americans and between public and private forces about the proper role of religion in the American polity. Just as early Americans debated among themselves, armed with their differing hopes and visions about how to mediate the intersection of religion and the state, so too Supreme Court decisions have, on a parallel track, reflected the changing contours of this important debate--a conversation that has yet to cede center stage in the American public square.

American Separationism and Liberal Democracy, 88 Marquette Law Review 867 (2005)

This Article explores whether liberal democracy demands the separation of Church and State. Drawing from several western jurisdictions--including Canada, the United States, Argentina, Denmark, Finland, Sweden, and England--this Article advances the historical and theoretical claim that the American model of strict separationism is not necessarily an indispensable feature of liberal democracy.

Beyond the Conventional Establishment Clause Narrative, 28 Seattle University Law Review 329 (2005)

In elaborating the meaning of the Establishment Clause, judges and scholars have commonly turned to the founders as their interpretative compass. But this should not necessarily be so--at least not exclusively. In giving meaning to the Establishment Clause, judges and scholars should also turn to the framers and ratifiers of the Fourteenth Amendment. The Fourteenth Amendment transformed the original meaning of the civil protections preserved in the Bill of Rights. In light of the transformative effect of the Fourteenth Amendment, those responsible for its conception and confirmation must be consulted--of course in concert with Jefferson, Madison, and other founding leaders--in order to fully and properly gauge the meaning of the modern Establishment Clause.

Popular Will and the Establishment Clause,
​35 Memphis Law Review 199 (2005)

The United States should define religious neutrality--whether strict or benevolent--in the realm of politics, not in courts of law. It remains possible to remove the definition of neutrality from the command of the judiciary while nonetheless reserving a critical role for the judiciary. Focusing upon religious schools as a launching pad, this article reframes the enduring debate on neutrality, not by arguing for either strict or benevolent neutrality, but by redirecting the decisional responsibility from the judiciary to the people.

Protest, Proportionality, and the Politics of Privacy,
​27 Loyola of Los Angeles International and Comparative Law Review 1 (2005)

This Article is an exercise in comparative constitutional law and politics. It is both descriptive and analytical. It explores how--and explains why--Canada and the United States have mediated the tension between the right of access to abortion clinics and the freedom of religious expression. It also illuminates why both nations have privileged the right of access to abortion clinics over the right to free religious expression.