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Can constitutional amendments be unconstitutional? Using theoretical and comparative approaches, Roznai establishes the nature and scope of constitutional amendment powers by focusing on substantive limitations, looking at their prevalence in practice and the conceptual coherence of the very idea of limitations to constitutional amendment powers.

"Can constitutional amendments be unconstitutional? The problem of 'unconstitutional constitutional amendments' has become one of the most widely debated issues in comparative constitutional theory, constitutional design, and constitutional adjudication. This book describes and analyses the increasing tendency in global constitutionalism substantively to limit formal changes to constitutions. The challenges of constitutional unamendability to constitutional theory become even more complex when constitutional courts enforce such limitations through substantive judicial review of amendments, often resulting in the declaration that these constitutional amendments are 'unconstitutional'. Combining historical comparisons, constitutional theory, and a wide comparative study, [the author] sets out to explain what the nature of amendment power is, what its limitations are, and what the role of constitutional courts is and should be when enforcing limitations on constitutional amendments."--

Of the 203 different proposals voted upon in 36 states during the 1938 elections, 154 were constitutional amendments. Ninety-seven amendments, or 63 per cent of the number submitted, were approved by the voters. Louisiana, with 28 amendments, led the states in the number of proposals submitted; Georgia followed closely with 23 and California with 19. Nearly one-half of the total number of amendments were considered by these three states. In the following description of amendments accepted, no attempt has been made to list the great variety of local municipal proposals on the ballots in Louisiana, Georgia, and South Carolina.Pensions and Public Welfare. California adopted an amendment granting plenary power to the legislature to provide for administration of relief as well as authority to reimburse counties for aid given. New York approved a precedent-setting amendment permitting the use of state money and credit for social welfare, "including provision, by insurance or otherwise, against the hazards of unemployment, sickness, and old age"; while Missouri broadened its constitution by adopting an amendment authorizing its legislature to grant pensions or assistance to persons over 65 years of age.

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.

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.

Differences between state and federal procedures. Relevance of the differences for the role of state constitutions as protectors of civil rights and liberties.

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.