Abstract

In this introductory chapter to our edited volume on “An Unamendable Constitution? Unamendability in Constitutional States,” we explore one of the most fascinating—and controversial—developments in constitutional design in the last half-century: the rise of unamendability.

Whether formal or informal, unamend­ability serves many purposes, and we illustrate each of them with reference to constitutions around the world. We discuss the substantive, procedural and tem­poral limitations on constitutional amendment, we highlight the foundational questions in modern constitutionalism raised by unamendability, and we situate each of the thirteen chapters comprising the volume within the literature on con­stitutional change. Our objective in this volume is to theorize the subject of una­mendability and to probe deeply the uses and misuses of unamendability in constitutional design.

The late political scientist John Burgess described the amending clause as “the most important part of a constitution.”^[1] Formal amendment rules indeed serve funda­mental functions in a constitutional democracy, notably the expression of values that define a community constituted under an authoritative charter.^[2] Formal amendment rules also provide a roadmap for amending actors to alter the consti- tution,^[3] they distinguish constitutional from ordinary law,^[4] and they reflect the democratic values of participation, deliberation, and ownership.^[5] At their best, they

¹Burgess (1893), p. 137.

²Albert (2013), pp. 225, 247-257.

³Dixon and Holden (2012), p. 195.

⁴Sajo (1999), pp. 39-40.

⁵Rasch and Congleton (2006), pp. 319, 326, Denning and Vile (2002), p. 247, 279. promote debate about constitutional meaning,^[6] they channel popular will into institutional dialogue,^[7] and they formalize the democratic right of citizens to amend their constitution.^[8]

Only very few constitutions do not codify formal amendment rules.^[9] Formal amendment procedures range from easy to satisfy, as in New Zealand where only a simple legislative majority is needed, to extraordinarily difficult, for instance, in the United States where national and subnational actors must agree to a change by high supermajority thresholds.^[10] In the vast majority of countries, formal amendment requires procedures more onerous than the ones used in normal lawmaking. This makes constitutional amendment a unique moment in the life of a state.

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