Academic

Albert on Constitutional Design

By Lawrence Solum

Richard Albert (Boston College - Law School) has posted Constitutional Handcuffs on SSRN. Here is the abstract:

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 unveiling a new theory to understand 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 escalator. In contrast to entrenchment clauses that render constitutional amendments a constitutional impossibility, the entrenchment escalator provides a promising alternative that both embraces the expressive function of entrenchment and remains consistent with the promise of constitutionalism.

And from the paper:

Three elements form the basic apparatus of the entrenchment escalator: (1) interim induction; (2) constitutional rank; and (3) sequential approval. The first, interim induction, seeks to respond to the challenge that confronts constitutional designers when they endeavor to introduce, and in so doing entrench, new values into the national consciousness. Be it a new founding commitment to preserving federalism or unitarism, presidentialism or parliamentarism, republicanism or monarchism, religion or secularism, or a commitment to transforming the state through civil and political rights or through electoral procedures, or be it even a new founding commitment to reconciliation, constitutional designers may often face resistance from citizens, who may for various reasons be unreceptive to these new values. In order to allow sufficient opportunity for the new values to take root in the citizenry, the entrenchment escalator mandates a period of induction?measured from the date the entrenchment comes into force?during which those newly entrenched values enjoy absolute immunity from constitutional amendment. Not even unanimity may overturn the entrenched provision.

And:

Using the concept of constitutional rank, the entrenchment escalator establishes tiers of escalating significance among constitutional provisions. But it does so in a way that retains the amendability of those constitutional provisions designated as most important in the constitutional order. Recalling that the entrenchment escalator rejects absolute entrenchment as illegitimate and imprudent, the alternative that presents itself is heightened constitutional entrenchment. Two positive benefits flow from inviting constitutional states to rely on heightened constitutional entrenchment in their constitutional design. First, heightened constitutional entrenchment exercises the same expressive function as absolute entrenchment, signaling both to citizens and to third party observers what is thought to be most important about the state, its design and its citizens. Second, it goes beyond simply distinguishing between the two tiers of entrenchment? absolute entrenchment and conventional constitutional entrenchment?that we discern in constitutional states deploying absolute entrenchment. Rather, heightened constitutional entrenchment folds within itself an infinite possibility of tiers of entrenchment?ranging from conventional constitutional entrenchment to multiple incarnations of heightened constitutional entrenchment, but excluding absolute entrenchment?that constitutional designers can use to distinguish among several tiers of constitutional provisions.

And:

Constitutional rank, then, is the incarnation of heightened constitutional entrenchment. For when one invokes the latter, one is by implication declaring that there exists an echelon of merit according to which each constitutional provision may be classified. If a principle, value, structure or rule is regarded as minimally more important than a conventional constitutional provision but less important than the most important constitutional feature of the state, then it should be categorized according to the lowest level of heightened constitutional entrenchment?the lowest constitutional rank within that degree of entrenchment. Conversely, if it is viewed as markedly more important than a conventional constitutional provision and minimally less important than the most important constitutional feature of the state, then it should be categorized according to the highest level of heightened constitutional entrenchment?otherwise understood as the highest constitutional rank within that degree of entrenchment.

And finally:

Sequential approval requires that citizens express their freely-given views on whether to amend a particular constitutional provision falling within a class of heightened constitutional entrenchment. But sequential approval requires that citizens express their consent to such an amendment more than once, in at least one initial and one subsequent confirmatory vote, and according to a clearly delimited majority defined in the constitutional text. Although the actual majority threshold would presumably vary from one constitutional text to another?as would the number of times that citizens would be required to reach that particular majority in different votes separated by a constitutionally defined period of time?the principle remains the same despite any wrinkles that may exist among constitutional states adopting the entrenchment escalator.

Very interesting & recommended.

Full post as published by Legal Theory Blog on September 23, 2009 (boomark / email).