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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.

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.

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.

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.

Commentators have suggested that the unsuccessful national referendum to ratify the 1992 Charlottetown Accord 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 ofreferenda with democratic legitimacy. I suggest instead that a national referendum should be an alternative path, not an additional step, in constitutional amendment.

Abstract In this Essay I explore the impetus for the Seventeenth Amendment, which was in large measure driven by an effort to curb corruption in senatorial elections. I begin by exploring the difficulty of formal amendment in the United States. I explain the rules of formal amendment and I review briefly the empirical literature suggesting that the United States Constitution is one of the world's most difficult to amend, if not the most difficult. Then, I discuss the Progressive Era, a period of time during which formal amendment seemed much easier than it is today. I review the movement and its purposes, and I situate the four Progressive Era amendments. Finally, I focus on one of these four amendments, the Seventeenth, and consider the motivations driving its adoption as well as current critiques about its effectiveness. I conclude by questioning whether repealing the Seventeenth Amendment would necessarily reinstate indirect senatorial elections as a matter of practice, whatever it would mean as a matter of formal law.

This essay provides a commentary on article 195 (formerly 131) of the Belgian Constitution, i.e. on the provision which governs constitutional amendment in Belgium.

A summary of ten amendments to the State Constitution proposed in the 1949 session of the New Mexico legislature. ; A summary of ten amendments to the State Constitution proposed in the 1949 session of the New Mexico legislature. ; A summary of ten amendments to the State Constitution proposed in the 1949 session of the New Mexico legislature. ; Mode of access: Internet.

In this Essay I explore the impetus for the Seventeenth Amendment, which was in large measure driven by an effort to curb corruption in senatorial elections. I begin by exploring the difficulty of formal amendment in the United States. I explain the rules of formal amendment and I review briefly the empirical literature suggesting that the United States Constitution is one of the world's most difficult to amend, if not the most difficult. Then, I discuss the Progressive Era, a period of time during which formal amendment seemed much easier than it is today. I review the movement and its purposes, and I situate the four Progressive Era amendments. Finally, I focus on one of these four amendments, the Seventeenth, and consider the motivations driving its adoption as well as current critiques about its effectiveness. I conclude by questioning whether repealing the Seventeenth Amendment would necessarily reinstate indirect senatorial elections as a matter of practice, whatever it would mean as a matter of formal law.