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This chapter focuses on the choice between two alternative means of effecting constitutional change: formal amendment and common-law judicial interpretation. A standard view in American constitutional theory is that amendments are presumptively harmful, because the limits of reason that afflict their enactors guarantee bad and unintended results. The chapter rejects this view and examines the epistemic costs and benefits of common-law constitutionalism administered by judges, on the one hand, and constitutional amendment, on the other, as alternative means for updating the Constitution in the face of changing circumstances. The claim that amendments are systematically futile, whether or not desirable, is also considered.

What is an amendment? This chapter shows why this question is central to the study of constitutional change. Some constitutional changes are identified as amendments but in reality may be more. Whether a constitutional change is an amendment entails implications for how the change must be made, whether a court can and should evaluate its constitutionality, and what the change requires for legitimation. This chapter returns to the origins of formal amendment—to the Articles of Confederation, America’s first constitution, which codified the very first amendment rule in a national constitution—to uncover the foundations of amendment practice and what makes an amendment different from other constitutional changes. This chapter moreover raises a question about an increasingly common phenomenon that straddles the border of legality and legitimacy: the violation of amendment rules. This chapter explains that the Indian basic structure doctrine and Bruce Ackerman’s theory of constitutional moments are, at bottom, variations on the same theme we see all over the world: changes to amendment rules that occur in defiance of the rules of formal amendment. Many examples follow to illustrate this point. The chapter closes by describing and situating the importance of the chapters to follow in this book. This chapter considers constitutions from around the globe.

Virtually all constitutions codify amendment rules. But why? What are the uses and purposes of constitutional amendment rules? Amendment rules of course create a legal process for reformers to alter the constitution. But amendment rules serve important purposes even if the constitution is never amended at all because they have essential uses beyond the obvious one of textual alteration. Amendment rules have three categories of uses: formal, functional, and symbolic. Their formal uses include repairing imperfections, distinguishing constitutional from ordinary law, entrenching rules against easy repeal or revision, and establishing a predictable procedure for constitutional change. Their functional uses include checking the court, promoting democracy, heightening public awareness, pacifying change, and managing difference. Symbolically, amendment rules can be used to express constitutional values. This chapter explains all of these many uses of amendment rules and illustrates each of them with examples drawn from constitutions around the world. This chapter also interrogates the symbolic uses of amendment rules: How can we know whether the values expressed in constitutional amendment rules reflect authentic political commitments? This chapter explains with reference to the German Basic Law that it is possible to evaluate the authenticity of the values in amendment rules by investigating the design of amendment rules and their subsequent interpretation. This chapter considers constitutions from Afghanistan, Albania, Algeria, Bosnia and Herzegovina, the Central African Republic, Chad, China, Cuba, Ecuador, Germany, Kazakhstan, Kiribati, Saint Lucia, South Africa, Spain, the Russian Federation, the Soviet Union, Ukraine, the United States, and Yugoslavia.

This chapter surveys the degree of recognition of the process of treaty modification by subsequent practice in the case law and doctrine. The analysis begins with the original ILC provision on treaty modification by subsequent practice ultimately excluded from the Vienna Convention. The focus then turns to analysing the validity, nature, and scope of the process of modification by subsequent practice, also in relation to formal amendment and a treaty’s object and purpose. Next, the chapter considers the difficult exercise of identifying modification by subsequent practice as distinguished from interpretation. Finally, the chapter explores how crucial factors such as the type of treaty regime and provision can impact the modifying process, and how alternative adaptation mechanisms can reduce the scope or need for recourse to modification. It is shown that subsequent practice can—under carefully defined conditions—alter, supplement, and terminate treaty provisions or even entire treaty frameworks.

This concluding chapter argues that constitutional law can and should move from the common-law constitution to the codified constitution. This shift would have two principal components—one institutional, one legal. Institutionally, the power to develop and update constitutional law over time would be partially transferred from lawyer-judges on courts to non-lawyer-judges on courts and to non-lawyer non-judges in legislatures and elsewhere. Legally, constitutional law would increasingly take the form of positive enactments—both formal amendments and statutes.

There are presently too few resources to guide constitutional designers in building the rules of constitutional amendment. This chapter offers a roadmap for designing constitutional amendment rules. As is true of building an edifice, constructing the rules of constitutional change requires careful thought about design and operation. This chapter explains that amendment rules are organized around four sets of fundamental choices requiring designers to set the foundations of the polity, to choose among pathways to initiate, propose and ratify an amendment, to select specifications that will put the foundations and pathways into operation, and finally to determine how and where amendments will be recorded. This chapter also explains that formal amendment as a practice reflects the democratic values of the rule of law, including predictability, transparency, and publicity. There are of course advantages to informal amendment and methods of change that violate the codified rules of change, but there are even greater democracy-enhancing virtues that are possible only with formal amendment. This chapter considers constitutions from Austria, Costa Rica, Great Britain, India, Ireland, Spain, Switzerland, and the United States.

Constitutional designers rarely ask many questions they should. How and where will the constitution indicate that it has been amended? Will it record the change at the end of the original constitution, or will the change be inserted directly into the founding text? And what about an uncodified constitution: How will it identify constitution-level changes? This chapter offers the first analysis into the options available to constitutional designers for codifying constitutional amendments. This chapter identifies and illustrates the four major models of amendment codification in the world: the appendative model in the United States, the integrative model in India, the invisible model in Ireland, and the disaggregative model in Great Britain. How and where to memorialize changes to the constitution entails implications for how interpreters of constitutional meaning will read the constitution in the course of adjudication, whether the constitution will become a focal point of reference in constitutional politics, and how intensely citizens will venerate their constitution. The way amendments are recorded is ultimately a choice about how and indeed whether a people chooses to remember its past. Today constitutional designers do not consider the consequences of amendment codification, but they should. This chapter explains why the choices involved in amendment codification concern more than mere aesthetics. This chapter considers constitutions from Canada, Great Britain, India, Ireland, Israel, Mexico, New Zealand, Norway, Saint Lucia, Spain, and the United States.

This chapter introduces the discussion of the key role of subsequent practice in the process of treaty adaptation and the formation of international law more generally. The chapter explains the need to explore the treaty modifying potential of subsequent practice—a topic that has, in recent years, generated an increasing amount of attention—and its potentially far-reaching effects for States and dispute settlement bodies alike. The chapter also defines treaty ‘modification’ in this context. The final section sets out the book's systematic approach to exploring the relevance and dynamism of the process of treaty modification by subsequent practice and showing—on a theoretical and practical level—how it can be identified and dealt with more consistently in the future.