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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.

Frontmatter -- Preface -- Foreword / Dawson, R. MacGregor -- Contents -- Introduction -- Part I: The Constitution Of Canada -- I. The Constitution Defined -- II. The Flexibility of the Constitution -- Part II. How Past Amendments Were Secured -- III. How Past Amendments Were Secured -- Part III. The Amending Process To-Day -- IV. An Address from Both Houses of Parliament -- V. The Participation of the Provinces -- VI. The Role of the British Parliament -- VII. Conflicting Views on the Amending Process -- Part IV. Proposals For A New Amending Machinery -- VIII. Changes of Procedure Advocated in the Past -- IX. An Approach to the Future -- Appendices -- Bibliography -- Index

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.

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.

The American traditions of constitutional amendment raise contrasts and continuities with constitutional amendment in much of the rest of the democratic world. On one hand, the United States Constitution stands apart from many foreign democratic constitutions: it is extraordinarily difficult to amend, it does not entrench any current form of formal unamendability, and it has resisted the global trend toward the doctrine of unconstitutional constitutional amendment. On the other, 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.

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 virtually 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 suggest that 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.