Constitutional Amendment
In: Middle East Studies Association bulletin, Band 12, Heft 2, S. 60-61
In: Middle East Studies Association bulletin, Band 12, Heft 2, S. 60-61
In: American political science review, Band 8, Heft 2, S. 258-259
ISSN: 1537-5943
In: Oxford Handbook of the Indian Constitution (ed. Sujit Choudhry, Madhav Khosla and Pratap Bhanu Mehta, Oxford University Press 2016)
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In: American political science review, Band 8, Heft 3, S. 445-451
ISSN: 1537-5943
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.
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In: Schweber, Howard, 'The Hermeneutics of Constitutional Amendment,' Constitutional Studies 7 (2021): 123-55
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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.
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In: 43 Yale Journal of International Law 1 (2018)
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In: The Parliamentarian: journal of the parliaments of the Commonwealth, Band 79, Heft 2, S. 195-198
ISSN: 0031-2282
SINCE ACHIEVING POLITICAL INDEPENDENCE IN 1964, ZAMBIA HAS HAD THREE CONSTITUTIONS. IN ADDITION, VARIOUS AMENDMENTS HAVE BEEN PASSED TO ALTER SPECIFIC CONSTITUTIONAL PROVISIONS. THIS ARTICLE SUMMARIZES SOME SALIENT CONSTITUTIONAL AMENDMENTS AND THE IMPACTS THEY HAVE HAD ON ZAMBIA'S PARLIAMENT, THE JUDICIARY, AND THE EXECUTIVE BRANCH.
In: 62 American Journal of Comparative Law 641 (2014)
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In: Buffalo Law Review Vol. 65, 739, 2016
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Working paper
In: FORMAL AND INFORMAL CONSTITUTIONAL AMENDMENT, M. Sellers ed (Forthcoming)
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In: Canadian journal of economics and political science: the journal of the Canadian Political Science Association = Revue canadienne d'économique et de science politique, Band 29, Heft 4, S. 486-494
An amending procedure is integral to a scheme of free and responsible government. Liberal constitutions are not formed on the naive assumption that they are immune from obsolescence. Their architects, unlike the Emperor Justinian, are never confident that their legal handiwork can endure for all time. They accept the necessity for change as self-evident and provide the means for achieving it.In a liberal federation, however, the devising of a satisfactory procedure for amendment is rarely easy and seldom gives satisfaction, mainly because in such a state constitutional rigidity no less than flexibility has a raison d'être. The communities associated in the federation want a measure of security, a guarantee that their individual identity and integrity will never be lightly sacrificed in the process of change. This was illustrated long ago in the most influential federal union in history. The men who deliberated at Philadelphia in 1787 agreed that amendments must be sanctioned by a special majority in Congress and ratified by three-fourths of the states. They were confident that they had thus made change difficult, but not difficult enough to prevent it when necessary. Actually, for many reasons, it proved more difficult than they could have envisaged. Since the first ten amendments were little more than supplements to an unfinished document, there remain only twelve effected in 170 years, and of these three were obtained under very abnormal circumstances when the South was under the heel of the North. Important as some of them have been, most of the crucial adjustments and changes in the federation have been achieved in other ways, by judicial interpretation, usages, conventions, and a network of agreements.