Research Handbooks in Comparative Law series
Edited by Tom Ginsburg and Rosalind Dixon
Chapter 6: Constitutional Amendment Rules: A Comparative Perspective
Rosalind Dixon* Formal provision for constitutional amendment is now a near universal feature of national constitutions (see e.g. Lutz 1995; Elkins et al. 2009). However, significant controversy remains over both the function of formal procedures for constitutional amendment and the key determinants of the comparative difficulty of such processes. An ‘amendment’ denotes the idea of ‘correction/repair or improvement’ (Oxford English Dictionary) and, for most commentators, constitutional amendment rules are designed to serve exactly these purposes – that is, to allow for the correction of or improvement upon prior constitutional design choices in light of new information, evolving experiences or political understandings (see e.g. Denning and Vile 2002). Another view, which this chapter explores, is that constitutional amendment processes are designed not so much to allow changes to the constitution’s original design but rather to allow legislative and popular actors greater scope to influence constitutional courts’ evolving interpretation of that design. Because in each case such processes assume the existence of some prior constitutional instrument as the object of correction or improvement, many constitutional scholars suggest that some forms of constitutional change are too radical or all-encompassing to count as amendments to a prior constitutional instrument (see e.g. Albert 2009; Simeon 2009; Zohar 1995: 318). The distinction may have important legal consequences in some jurisdictions (for instance, in California) because different formal requirements apply to processes of constitutional amendment as opposed to ‘revision’ (see Constitution of California, Art. XVIII; and discussion in Grodin et al. 1993). On the other hand, most constitutional...