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“It’s the Procedure, Stupid!”: Amendment Procedures and Their Effects on Constitutional Stability

By Joseph Noss

Abstract

Constitutions must change. No human can stop time from marching forward, nor the social, economic, cultural, and technological developments associated. As a result, constitutions necessitate mechanisms that allow for their own progress. The amendment procedure of a constitution—the rules that govern what changes can occur—is therefore fundamental to any constitutional system. Importantly, scholars, politicians, and citizens alike fail to take into account the significance of these amendment processes and their effects on the constitutions they govern. While usually treated as a constitutional after-thought, amendment procedures have one of the most pronounced, substantive effects on the permanence of a constitutional order. Amendment procedures not only create the environment in which amendments are passed, but they also inform whether or not constitutional change occurs outside the formal amendment process—via things like judicial reinterpretation. As a result, amendment procedures have a relationship with the constitutional stability of a nation—the extent to which the constitution’s principles and institutions are followed. This thesis posits a procedure-based theory—that amendments are introduced and passed as a result of their amendment process, and when analyzing constitutional developments, it is first fundamental to analyze that nation’s amendment process. By placing procedure in the centre of the discussion, this thesis hopes to help politicians, scholars, and citizens alike better understand their constitutional systems. To address the threats modern democracies face, citizens must understand where these threats come from. Sometimes, the threat is not external or caused by a political actor, but it is instead the amendment procedure itself. When people fail to comprehend this reality, they blame the ills of their amendment procedure on democratic government. In turn, constitutional stability is undermined in the ways seen in America today. To ensure the permanence of democratic constitutional orders across the world, citizens must understand that sometimes, “it’s the procedure, stupid!

Topics: Amendment Procedure, Constitutional Stability, Comparative Constitutional Law, American Politics, Comparative and Foreign Law, Comparative Politics, Constitutional Law
Publisher: Scholarship @ Claremont
Year: 2020
OAI identifier: oai:scholarship.claremont.edu:cmc_theses-3464
Provided by: Scholarship@Claremont

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