Popular in Law

Human Rights Law

Human Rights and Corruption: Problems and Potential of Individualising a Systemic Problem

Max Planck Institute Anne Peters

Law

A statistical approach to law school citation rankings

University of Virginia Joshua Fischman

Constitutional Law

What is constitutional ideology?

University of Oxford Nick Barber

Civil Procedure Law

Politics, Identity, and Class Certification on the U.S. Courts of Appeals

University of Pennsylvania Sean Farhang

Law

Diversity and Social Mobility in the UK legal profession

Law Society I. Stephanie Boyce

Internet Law

The Law of AI for Good

University of San Diego Orly Lobel

Human Rights Law

Transforming Restorative Justice for Transitional Settings

University of Nottingham Kerry Clamp

Constitutional Amendments: Making, Breaking, and Changing Constitutions

View more insights in Professional - Law - Constitutional Law

View more figures from The University of Texas at Austin

View the page of Richard Albert

Read the Study

Next in Constitutional Law

Court-Packing in Context

Barry Cushman | University of Notre Dame

Taking Stock of Indigenous-State Treaty-Making in Australia: Opportunities and Challenges

Harry Hobbs | UNSW Sydney

What do constitutional amendment procedures reveal about the strength, adaptability, and vulnerabilities of a constitution, and how can they be structured to shape the future of democratic governance?

Image courtesy of interviewee. December 5, 2024

Log-in or Sign-up to Faculti
Currently viewing this subject insight as a guest. You have insight(s) remaining for this month. Login to view 8000+ figures on the platform.

Generating Workspace...

Export as PDF

This video discusses the significance of constitutional amendment rules in shaping the meaning and function of a constitution, emphasizing their importance as the most critical aspect of a constitution itself. A recent study among constitutional law professors highlighted that these amendment procedures allow for correcting errors and expressing values through various thresholds for change within the constitution, creating a hierarchy of importance.

The speaker outlines the risks involved with amendment procedures, noting that they can be used both positively—to enhance rights and correct flaws—and negatively—to restrict rights and entrench power. They differentiate between small amendments, which maintain constitutional coherence, and transformative changes, or "constitutional dismemberments," which fundamentally alter the structure or principles of the constitution.

Three models of constitutional reform are identified: the monist model (one procedure for changes), the dualist model (separate tracks for amendments and dismemberments), and the tripartite model (additional procedures for replacement).

This video also contrasts the endurance of the U.S. Constitution, which has lasted over 235 years, with the average lifespan of constitutions worldwide (19 years). It discusses three models of constitutional time: the sundial model (continuous operation without a new constitution), the grenade model (revolutionary changes leading to a new constitution), and the hourglass model (scheduled changes prompting new constitutions). The U.S. stands out for its stability and lack of desire among political actors for constitutional replacement, emphasizing its uniqueness in global constitutional practices.

Language:

Export as PDF

Export as PDF
Here are five key points from the video:

1. **Importance of Amendment Rules**: The video emphasizes that the rules governing constitutional amendments are crucial to a constitution's functionality and meaning. A study showed that constitutional law professors consider amendment procedures as the most significant aspect of a constitution, as they serve to correct errors and express societal values.

2. **Differentiation of Amendments**: The author discusses the distinction between small amendments (e.g., changing the presidential inauguration date) and significant, transformative changes (e.g., altering the government type). They propose that while minor amendments maintain coherence, larger changes can fundamentally alter constitutional structures, which they term "constitutional dismemberments."

3. **Models of Constitutional Reform**: The video outlines three models of constitutional reform observed globally: the **Monist model** (one procedure for all changes), the **Dualist model** (two tracks for small versus large changes), and the **Tripartite model** (procedures for both major changes and complete replacements). Each model has unique strengths and weaknesses in handling constitutional changes.

4. **Constitutional Longevity**: The author notes the U.S. Constitution's longevity—235 years—compared to the global average lifespan of constitutions, which is only 19 years. This raises questions about how constitutional time operates differently in the U.S. than in other countries.

5. **Constitutional Time Models**: Three models of constitutional time are presented: the **Sundial model** (ongoing amendments without a constitutional overhaul), the **Grenade model** (completely rewriting constitutions during revolutions), and the **Hourglass model** (pre-scheduled amendments or replacement of constitutions). These models illustrate differing approaches to constitutional evolution and renewal across different political convideos.

Export as PDF
Here are some key quotes extracted from the video :

1. **Importance of Amendment Rules**: "There's no part of a constitution that's more important than the rules that we use to change the meaning of the Constitution."

2. **Value of Constitutional Amendment Rules**: "Constitutional amendment rules... serve so many purposes."

3. **Empirical Evidence for Amendment Procedures**: "About 95 to 96% of those constitutions contain procedures to amend the Constitution."

4. **Risks of Amendment Procedures**: "Amendment procedures can be used... to correct errors... but they can also be used to retrench rights."

5. **Janus Nature of Amendment Procedures**: "Amendment procedures are Janus based. Political actors can reform a constitution in many different ways."

6. **Distinction Between Types of Changes**: "I understand constitutional amendments as those changes that keep the constitution coherent... In contrast, I think of big changes, transformative changes as constitutional dismemberments."

7. **Models of Constitutional Reform**: "There are three basic models of constitutional reform around the world. I describe them as the monist model, the dualist model, and the tripartite model."

8. **Sundial vs. Grenade vs. Hourglass Models of Constitutional Time**: "In the United States, we operate under the Sundial model of constitutional time... The grenade model... typically what happens in the convideo of revolution... The hourglass model... is pre-programmed to change at certain intervals."

These quotes capture the essential ideas and themes of the video, including the significance of amendment rules, the different types of constitutional changes, and the various models of constitutional time and reform.

X-TIMESTAMP-MAP=LOCAL:00:00:00.000,MPEGTS:90000

1
00:00:00.075 --> 00:00:02.525
There's no part of a constitution

2
00:00:02.705 --> 00:00:06.125
that's more important than the rules that we use to change

3
00:00:06.745 --> 00:00:08.685
the meaning of the Constitution.

4
00:00:09.185 --> 00:00:11.525
And you don't have to take my word for it.

5
00:00:11.735 --> 00:00:16.125
There was a study conducted just last year, that old

6
00:00:16.725 --> 00:00:20.085
constitutional law professors about what's the most

7
00:00:20.085 --> 00:00:22.445
important provision of a constitution?

8
00:00:22.445 --> 00:00:23.965
And it turns out that the answer is

9
00:00:24.725 --> 00:00:26.565
Constitutional amendment rules.

10
00:00:27.225 --> 00:00:28.485
And to me that makes sense

11
00:00:28.555 --> 00:00:31.645
because those rules serve so many purposes.

12
00:00:32.035 --> 00:00:34.965
Imagine you can use these procedures to fix a flaw

13
00:00:35.185 --> 00:00:38.125
or an error in the Constitution that makes sense.

14
00:00:38.165 --> 00:00:39.485
That's what they're used for.

15
00:00:39.945 --> 00:00:44.645
But you can also use these procedures to express values.

16
00:00:45.145 --> 00:00:47.885
So just in the way these procedures are designed,

17
00:00:48.355 --> 00:00:50.005
expresses values, for example,

18
00:00:50.475 --> 00:00:53.845
some constitutions create different thresholds of difficulty

19
00:00:54.065 --> 00:00:56.925
to change different parts of a constitution.

20
00:00:57.195 --> 00:01:00.845
That alone creates a constitutional hierarchy of importance.

21
00:01:00.985 --> 00:01:02.405
And it tells us what those

22
00:01:02.405 --> 00:01:06.405
who wrote the constitution believe matters more than other

23
00:01:06.405 --> 00:01:07.685
parts of the Constitution.

24
00:01:07.755 --> 00:01:10.565
Just one more thought in response to your question

25
00:01:11.095 --> 00:01:14.245
about whether amendment procedures are essential in a

26
00:01:14.485 --> 00:01:16.125
democratic constitution.

27
00:01:16.615 --> 00:01:18.885
Let's just look at all the constitutions around the world.

28
00:01:18.945 --> 00:01:22.805
It turns out that about 95 to 96%

29
00:01:22.805 --> 00:01:25.885
of those constitutions contain procedures

30
00:01:26.025 --> 00:01:27.485
to amend the Constitution.

31
00:01:27.745 --> 00:01:31.565
And so just empirically, it turns out that those

32
00:01:31.615 --> 00:01:34.715
who write constitutions believe that these are essential.

33
00:01:34.715 --> 00:01:37.075
These rules are essential to the functioning,

34
00:01:37.075 --> 00:01:39.155
proper functioning of a constitution.

35
00:01:39.155 --> 00:01:42.195
Otherwise, they would not put them in a constitution.

36
00:01:42.295 --> 00:01:44.035
Now, I think they're the most important part

37
00:01:44.035 --> 00:01:47.555
of a constitution, but they also come with risks, which is

38
00:01:47.555 --> 00:01:50.595
to say that you can use these amendment procedures

39
00:01:50.935 --> 00:01:53.275
to do both good and ill.

40
00:01:53.895 --> 00:01:55.555
So amen. Procedures can be used,

41
00:01:55.555 --> 00:01:56.915
as I mentioned a moment ago,

42
00:01:57.295 --> 00:01:59.675
to correct errors in the Constitution,

43
00:02:00.055 --> 00:02:03.075
but they can also be used to retrench rights

44
00:02:03.735 --> 00:02:07.635
to transform a society from one that is rights protecting,

45
00:02:07.635 --> 00:02:10.155
to one that is rights infringing to one

46
00:02:10.155 --> 00:02:11.635
where liberty is broad

47
00:02:11.695 --> 00:02:15.115
and wide, where one is now narrow,

48
00:02:15.895 --> 00:02:17.195
and shallow.

49
00:02:17.975 --> 00:02:20.835
And so in my own view, my own research, I found

50
00:02:20.835 --> 00:02:24.195
that political actors sometimes abuse these amendment

51
00:02:24.635 --> 00:02:26.755
procedures to entrench themselves in power,

52
00:02:27.055 --> 00:02:29.915
to take rights away from their opponents,

53
00:02:30.335 --> 00:02:33.675
and really to do things that we would not expect

54
00:02:33.975 --> 00:02:36.035
of a modern liberal democracy.

55
00:02:36.335 --> 00:02:39.475
And so that's why amendment procedures are Janus based.

56
00:02:39.785 --> 00:02:43.075
They have this positive side, but also this very dark side.

57
00:02:43.075 --> 00:02:45.115
Political actors can reform a

58
00:02:45.395 --> 00:02:47.315
constitution in many different ways.

59
00:02:48.555 --> 00:02:51.595
When they use a procedure of constitutional amendment

60
00:02:51.595 --> 00:02:54.155
that's codified in the text of the Constitution,

61
00:02:54.545 --> 00:02:55.915
they can use that procedure

62
00:02:55.975 --> 00:02:58.835
to introduce small changes, but they can also

63
00:02:58.855 --> 00:03:01.165
Use it to introduce big changes.

64
00:03:01.865 --> 00:03:05.685
And I have asked the question in my own research whether we

65
00:03:05.685 --> 00:03:08.245
should treat small changes in the same way

66
00:03:08.435 --> 00:03:10.005
that we treat big changes.

67
00:03:10.425 --> 00:03:13.005
So imagine, for example, drawing from the United States.

68
00:03:13.705 --> 00:03:16.205
The 20th Amendment changes the date

69
00:03:16.595 --> 00:03:20.765
that the president becomes president from March 4th

70
00:03:21.855 --> 00:03:23.155
to January 20th.

71
00:03:23.775 --> 00:03:25.835
Now, the reason why that change was made,

72
00:03:25.835 --> 00:03:26.955
that's the 20th amendment.

73
00:03:27.375 --> 00:03:28.555
The reason why is

74
00:03:28.555 --> 00:03:32.275
because it was no longer necessary to ride on horseback from

75
00:03:32.275 --> 00:03:34.915
where you were elected to the Capitol.

76
00:03:35.375 --> 00:03:37.355
You could take a train, you could take a plane,

77
00:03:37.655 --> 00:03:41.435
and so they chose to narrow the lame duck period

78
00:03:41.905 --> 00:03:44.315
between election and inauguration.

79
00:03:44.545 --> 00:03:45.835
That makes sense to me, but

80
00:03:45.835 --> 00:03:49.195
that's not a big transformative change to the Constitution.

81
00:03:49.695 --> 00:03:53.195
Now imagine, in contrast, an amendment that

82
00:03:53.915 --> 00:03:57.195
transforms a system of government from a presidential system

83
00:03:57.655 --> 00:03:58.915
to a parliamentary system

84
00:03:59.135 --> 00:04:03.115
or from a constitutional monarchy to a republic

85
00:04:03.655 --> 00:04:06.395
or from a constitutional system

86
00:04:07.025 --> 00:04:10.675
that entrenches a religion to one that removes

87
00:04:10.985 --> 00:04:12.315
that religious dominance

88
00:04:12.315 --> 00:04:14.555
to create a secular state or vice versa.

89
00:04:15.165 --> 00:04:17.755
These kinds of changes are different in

90
00:04:17.905 --> 00:04:19.075
quality, aren't they?

91
00:04:19.305 --> 00:04:20.395
From changing the date

92
00:04:20.545 --> 00:04:22.555
that the president becomes president from

93
00:04:22.555 --> 00:04:24.115
March 4th to January 20th.

94
00:04:24.115 --> 00:04:27.655
And so I ask only whether we should distinguish

95
00:04:28.305 --> 00:04:30.535
small changes from big changes

96
00:04:30.635 --> 00:04:33.775
and to have a different understanding as between them.

97
00:04:34.075 --> 00:04:38.095
So I understand constitutional amendments as those changes

98
00:04:38.205 --> 00:04:42.175
that keep the constitution coherent, that do not do violence

99
00:04:42.395 --> 00:04:45.575
to the Constitution, don't change its basic presuppositions.

100
00:04:45.995 --> 00:04:49.615
In contrast, I think of big changes, transformative changes

101
00:04:50.155 --> 00:04:53.655
as constitutional dismemberments, not amendments,

102
00:04:53.675 --> 00:04:55.695
but constitutional dismemberments.

103
00:04:55.955 --> 00:04:59.775
And these are changes that transform the basic structure

104
00:04:59.795 --> 00:05:02.415
of the constitution or the fundamental rights

105
00:05:02.415 --> 00:05:04.335
and freedoms in the Constitution

106
00:05:04.955 --> 00:05:06.935
or the identity of the Constitution.

107
00:05:06.935 --> 00:05:10.895
And so I've tried very hard to make as clear as possible

108
00:05:11.635 --> 00:05:14.335
the distinction between what counts as an amendment

109
00:05:14.555 --> 00:05:17.735
to a constitution versus what counts as a dismemberment

110
00:05:18.195 --> 00:05:19.295
of a constitution.

111
00:05:19.385 --> 00:05:21.415
There are three basic models

112
00:05:21.435 --> 00:05:23.735
of constitutional reform around the world.

113
00:05:24.095 --> 00:05:28.375
I describe them as the monist model, the dualist model,

114
00:05:28.675 --> 00:05:30.495
and the tripartite model.

115
00:05:30.915 --> 00:05:34.495
In the Monist model, which we see in Germany and Japan

116
00:05:34.515 --> 00:05:37.615
and Mexico, for example, there is one procedure

117
00:05:37.715 --> 00:05:39.095
and one procedure alone

118
00:05:39.595 --> 00:05:42.175
to change anything in the Constitution.

119
00:05:42.205 --> 00:05:44.255
Whether one wants to change the date

120
00:05:44.255 --> 00:05:45.935
of the presidential inauguration,

121
00:05:46.595 --> 00:05:47.895
or whether one wants

122
00:05:47.895 --> 00:05:50.015
to transform the state from a secular state

123
00:05:50.115 --> 00:05:54.015
to a theocracy one procedure, one procedure alone.

124
00:05:54.715 --> 00:05:58.485
In the Dualist model, which we see in Spain and Switzerland

125
00:05:58.505 --> 00:05:59.725
and Canada, for example,

126
00:06:00.175 --> 00:06:03.085
there are two separate tracks of procedures.

127
00:06:03.665 --> 00:06:04.925
One track that can be used

128
00:06:05.025 --> 00:06:07.805
to make constitutional amendments, small changes

129
00:06:08.345 --> 00:06:10.165
and a separate track that can be used

130
00:06:10.165 --> 00:06:12.165
to make big transformative changes.

131
00:06:12.625 --> 00:06:14.645
Dismemberments. And the difference

132
00:06:14.645 --> 00:06:17.005
between these two separate tracks is

133
00:06:17.005 --> 00:06:20.125
that the amendments are made at a lower threshold

134
00:06:20.125 --> 00:06:22.365
of approval among political actors.

135
00:06:22.515 --> 00:06:23.965
Whereas Dismemberments,

136
00:06:23.965 --> 00:06:25.925
because they're so big, they're big changes.

137
00:06:26.345 --> 00:06:28.165
We want to require political actors

138
00:06:28.305 --> 00:06:31.485
to spend more time deliberating, debating want

139
00:06:31.485 --> 00:06:35.485
to require political actors to reach higher thresholds

140
00:06:35.585 --> 00:06:36.885
of agreement and approval.

141
00:06:37.665 --> 00:06:39.925
And finally, the third model that we see

142
00:06:39.925 --> 00:06:42.285
around the world is a tripartite model.

143
00:06:42.665 --> 00:06:45.485
We see this in Ecuador and Venezuela, for instance.

144
00:06:45.825 --> 00:06:49.405
And this is a model of reform that includes procedures

145
00:06:49.585 --> 00:06:53.525
for constitutional amendment, small changes, procedures

146
00:06:53.545 --> 00:06:56.365
for constitutional dismemberment, big changes,

147
00:06:56.825 --> 00:06:59.965
and finally, procedures for constitutional replacement.

148
00:07:00.685 --> 00:07:02.525
A track that allows political actors

149
00:07:02.625 --> 00:07:05.805
and the people to work collaboratively to enact a new

150
00:07:06.645 --> 00:07:07.805
constitution altogether.

151
00:07:08.025 --> 00:07:11.285
So monist, dualist, tripartite, each

152
00:07:11.445 --> 00:07:14.685
of these models has its own strengths and weaknesses,

153
00:07:14.785 --> 00:07:17.325
but those are the three that I've seen around the world.

154
00:07:17.865 --> 00:07:21.445
It was written in 1787, ratified in 88,

155
00:07:21.585 --> 00:07:23.685
and it came into force in 1789.

156
00:07:24.315 --> 00:07:27.605
It's been around for 235 years.

157
00:07:28.145 --> 00:07:29.645
That's a lot of time.

158
00:07:29.745 --> 00:07:34.005
And it's a sharp contrast to the average lifespan

159
00:07:34.425 --> 00:07:37.205
of a constitution in the history of humanity,

160
00:07:37.415 --> 00:07:39.085
which has been 19 years.

161
00:07:39.625 --> 00:07:44.005
That's the average lifespan, 19 years versus 235 years.

162
00:07:44.465 --> 00:07:46.445
And so for me, this raises a question,

163
00:07:47.345 --> 00:07:50.165
how does constitutional time operate

164
00:07:50.915 --> 00:07:53.495
and run in the United States versus the world?

165
00:07:53.835 --> 00:07:56.495
And my first answer is that it's much different here

166
00:07:56.495 --> 00:07:57.695
because in the United States,

167
00:07:58.355 --> 00:08:02.655
we operate under the Sundial model of constitutional time.

168
00:08:03.125 --> 00:08:07.415
Time keeps going, the clock keeps turning with no thought,

169
00:08:07.995 --> 00:08:10.655
no consideration ever given to stopping time

170
00:08:10.795 --> 00:08:12.895
and writing a new constitution.

171
00:08:13.225 --> 00:08:15.175
There are two different models that we see

172
00:08:15.395 --> 00:08:17.975
around the world in relation to constitutional time.

173
00:08:18.635 --> 00:08:22.215
The first is the grenade model of constitutional time.

174
00:08:22.605 --> 00:08:24.255
When you wanna write a new constitution,

175
00:08:24.715 --> 00:08:27.615
you throw a grenade into the constitutional order,

176
00:08:27.755 --> 00:08:30.295
and you start a new right, a new constitution.

177
00:08:30.525 --> 00:08:35.335
This is typically what happens in the context of revolution.

178
00:08:35.915 --> 00:08:38.815
The Mexican revolution, for example, the French Revolution,

179
00:08:38.835 --> 00:08:41.175
for example, you just start all over.

180
00:08:41.515 --> 00:08:44.695
No thought is given to keeping the current constitution in

181
00:08:44.695 --> 00:08:46.575
the midst of crisis, in the midst of war.

182
00:08:47.115 --> 00:08:49.935
No, you write a new constitution in the US

183
00:08:50.265 --> 00:08:52.695
after the Civil War, no thought was given

184
00:08:52.875 --> 00:08:53.895
to writing a new one.

185
00:08:54.275 --> 00:08:57.725
It was how are we going to amend it to keep the one we have

186
00:08:58.025 --> 00:08:59.205
to keep going.

187
00:08:59.505 --> 00:09:01.725
So you have the Sundial model in the us,

188
00:09:02.185 --> 00:09:04.365
the grenade model in much of the world

189
00:09:04.365 --> 00:09:05.605
where revolutions happen,

190
00:09:05.705 --> 00:09:09.605
and these seismic changes occur in the constitutional order

191
00:09:09.985 --> 00:09:11.885
and thought is given immediately

192
00:09:11.885 --> 00:09:13.525
to writing a new constitution.

193
00:09:14.185 --> 00:09:16.965
The third and final model that we see around the world

194
00:09:17.025 --> 00:09:20.725
of constitutional time is the hourglass model

195
00:09:20.945 --> 00:09:22.165
of constitutional time.

196
00:09:22.635 --> 00:09:27.195
This is the model in which constitutions are pre-programmed

197
00:09:27.615 --> 00:09:29.595
to change at certain intervals.

198
00:09:29.655 --> 00:09:33.515
So for example, some constitutions ask the people every 10

199
00:09:33.515 --> 00:09:35.515
years, every 15 years, every 20 years,

200
00:09:36.175 --> 00:09:38.515
do you want a new constitution?

201
00:09:38.515 --> 00:09:40.275
And the people vote yes or no.

202
00:09:40.695 --> 00:09:43.435
If they say yes, then a process is triggered

203
00:09:43.735 --> 00:09:46.635
to write a new constitution to replace the old.

204
00:09:46.735 --> 00:09:51.195
And so they just flip the hour, constitutional time stops

205
00:09:51.535 --> 00:09:54.475
and starts all over again with a new constitution

206
00:09:54.505 --> 00:09:58.275
that is pre-programmed to have been initiated in the new,

207
00:09:58.495 --> 00:10:00.835
in the old constitution to create the new.

208
00:10:00.935 --> 00:10:03.795
So these are the three models of constitutional time

209
00:10:03.795 --> 00:10:04.795
that I see around the world.

210
00:10:04.795 --> 00:10:07.995
And it's quite clear to me that the US Constitution stands

211
00:10:08.045 --> 00:10:11.675
apart from others, specifically because of its endurance,

212
00:10:11.815 --> 00:10:14.915
and also because there's very little interest

213
00:10:15.085 --> 00:10:16.155
among political actors

214
00:10:16.495 --> 00:10:18.475
or the people to replace the

215
00:10:18.715 --> 00:10:20.275
constitution of the United States.

216
00:10:20.495 --> 00:10:21.435
No matter what happens.

Importance of Constitutional Amendment Rules

00:00:00 - There's no part of a constitution that's more important than the rules that we use to change the meaning of the Constitution. And you don't have to take my word for it. There was a study conducted just last year, that old constitutional law professors about what's the most important provision of a constitution? And it turns out that the answer is Constitutional amendment rules. And to me that makes sense because those rules serve so many purposes.

00:00:35 - or an error in the Constitution that makes sense. That's what they're used for. But you can also use these procedures to express values. So just in the way these procedures are designed, expresses values, for example, some constitutions create different thresholds of difficulty to change different parts of a constitution. That alone creates a constitutional hierarchy of importance. And it tells us what those

00:01:06 - parts of the Constitution. Just one more thought in response to your question about whether amendment procedures are essential in a democratic constitution. Let's just look at all the constitutions around the world. It turns out that about 95 to 96% of those constitutions contain procedures to amend the Constitution. And so just empirically, it turns out that those who write constitutions believe that these are essential.

Dual Nature of Constitutional Amendments

00:01:37 - proper functioning of a constitution. Otherwise, they would not put them in a constitution. Now, I think they're the most important part of a constitution, but they also come with risks, which is to say that you can use these amendment procedures to do both good and ill. So amen. Procedures can be used, as I mentioned a moment ago, to correct errors in the Constitution, but they can also be used to retrench rights to transform a society from one that is rights protecting,

00:02:10 - where liberty is broad and wide, where one is now narrow, and shallow. And so in my own view, my own research, I found that political actors sometimes abuse these amendment procedures to entrench themselves in power, to take rights away from their opponents, and really to do things that we would not expect of a modern liberal democracy. And so that's why amendment procedures are Janus based.

00:02:43 - Political actors can reform a constitution in many different ways. When they use a procedure of constitutional amendment that's codified in the text of the Constitution, they can use that procedure to introduce small changes, but they can also Use it to introduce big changes. And I have asked the question in my own research whether we should treat small changes in the same way that we treat big changes.

Distinguishing Constitutional Changes: Small vs. Transformative Amendments

00:03:13 - The 20th Amendment changes the date that the president becomes president from March 4th to January 20th. Now, the reason why that change was made, that's the 20th amendment. The reason why is because it was no longer necessary to ride on horseback from where you were elected to the Capitol. You could take a train, you could take a plane, and so they chose to narrow the lame duck period

00:03:44 - That makes sense to me, but that's not a big transformative change to the Constitution. Now imagine, in contrast, an amendment that transforms a system of government from a presidential system to a parliamentary system or from a constitutional monarchy to a republic or from a constitutional system that entrenches a religion to one that removes that religious dominance

00:04:15 - These kinds of changes are different in quality, aren't they? From changing the date that the president becomes president from March 4th to January 20th. And so I ask only whether we should distinguish small changes from big changes and to have a different understanding as between them. So I understand constitutional amendments as those changes that keep the constitution coherent, that do not do violence

Understanding Constitutional Change: Amendments vs. Dismemberments

00:04:45 - In contrast, I think of big changes, transformative changes as constitutional dismemberments, not amendments, but constitutional dismemberments. And these are changes that transform the basic structure of the constitution or the fundamental rights and freedoms in the Constitution or the identity of the Constitution. And so I've tried very hard to make as clear as possible the distinction between what counts as an amendment

00:05:18 - of a constitution. There are three basic models of constitutional reform around the world. I describe them as the monist model, the dualist model, and the tripartite model. In the Monist model, which we see in Germany and Japan and Mexico, for example, there is one procedure and one procedure alone to change anything in the Constitution. Whether one wants to change the date of the presidential inauguration,

00:05:47 - to transform the state from a secular state to a theocracy one procedure, one procedure alone. In the Dualist model, which we see in Spain and Switzerland and Canada, for example, there are two separate tracks of procedures. One track that can be used to make constitutional amendments, small changes and a separate track that can be used to make big transformative changes. Dismemberments. And the difference between these two separate tracks is

Constitutional Models and Timeframes: A Comparative Analysis

00:06:20 - of approval among political actors. Whereas Dismemberments, because they're so big, they're big changes. We want to require political actors to spend more time deliberating, debating want to require political actors to reach higher thresholds of agreement and approval. And finally, the third model that we see around the world is a tripartite model. We see this in Ecuador and Venezuela, for instance. And this is a model of reform that includes procedures

00:06:53 - for constitutional dismemberment, big changes, and finally, procedures for constitutional replacement. A track that allows political actors and the people to work collaboratively to enact a new constitution altogether. So monist, dualist, tripartite, each of these models has its own strengths and weaknesses, but those are the three that I've seen around the world. It was written in 1787, ratified in 88,

00:07:24 - It's been around for 235 years. That's a lot of time. And it's a sharp contrast to the average lifespan of a constitution in the history of humanity, which has been 19 years. That's the average lifespan, 19 years versus 235 years. And so for me, this raises a question, how does constitutional time operate and run in the United States versus the world?

Models of Constitutional Time: Sundial, Grenade, and Hourglass

00:07:56 - because in the United States, we operate under the Sundial model of constitutional time. Time keeps going, the clock keeps turning with no thought, no consideration ever given to stopping time and writing a new constitution. There are two different models that we see around the world in relation to constitutional time. The first is the grenade model of constitutional time. When you wanna write a new constitution,

00:08:27 - and you start a new right, a new constitution. This is typically what happens in the context of revolution. The Mexican revolution, for example, the French Revolution, for example, you just start all over. No thought is given to keeping the current constitution in the midst of crisis, in the midst of war. No, you write a new constitution in the US after the Civil War, no thought was given to writing a new one. It was how are we going to amend it to keep the one we have

00:08:59 - So you have the Sundial model in the us, the grenade model in much of the world where revolutions happen, and these seismic changes occur in the constitutional order and thought is given immediately to writing a new constitution. The third and final model that we see around the world of constitutional time is the hourglass model of constitutional time. This is the model in which constitutions are pre-programmed to change at certain intervals.

Constitutional Time Models: The U.S. vs. Global Approaches

00:09:33 - years, every 15 years, every 20 years, do you want a new constitution? And the people vote yes or no. If they say yes, then a process is triggered to write a new constitution to replace the old. And so they just flip the hour, constitutional time stops and starts all over again with a new constitution that is pre-programmed to have been initiated in the new, in the old constitution to create the new.

00:10:20 - that I see around the world. And it's quite clear to me that the US Constitution stands apart from others, specifically because of its endurance, and also because there's very little interest among political actors or the people to replace the constitution of the United States. No matter what happens.

Faculti AI can make mistakes

Research

Policy

Analysis