The amendment power is a delegated power exercised by special constitutional agents. When the amendment power amends the constitution, it thus acts per procurationem of the people, as their agent [78]. Having a principal-agent relationship, the delegated amendment power is subordinated to the principal power from which it draws its legal competency.
Hence, contrary to the original constituent power , the delegation of the amendment power inherently entails certain limitations, as the legal framework of delegation is by itself characterised by constraints [79]. If the amendment power is delegated, it acts as trustee. Trustee of whom? Delegation and trust are conceptual keys to the nature and consequently the scope of amendment powers. Due to its nature, the trustee is always conditional and thus the fiduciary amendment power necessarily entails limits.
As Akhil Amar has argued, within Art. V of the U. Constitution, the people delegated the amendment power to ordinary government, and limitations on the amendment power, as stipulated in Art.
V, exist only when it is exercised by delegated powers following from the people [82]. However, one may claim that even though the amendment power is delegated, it is still limitless since it represents the unlimited sovereign. The representation of an unlimited constituent power must logically result in a similar unlimited amendment power. Such an argument should be rejected. This is precisely the distinction between original and derived constituent powers.
How does the theory of delegation manage to integrate the formal and substantive theories? First , delegation theory is not restricted to the substance of amendments. The amendment power must obey the procedure as prescribed in the constitution. Similarly, it is required to observe those explicit not necessarily procedural, but also substantive limits set upon it, as formally stipulated in the constitution [85]. Explicit limits on constitutional amendments express the idea that exercise of the amendment power — established by the constitution and deriving from it — must abide by the rules and prohibitions formally stipulated in the constitution.
Second , delegation theory is not restricted to form, but also concerns substance. The delegated amendment power, as a rational understanding of that delegation, must be substantively limited, whether these limits are explicitly stated in the constitution or not.
Therefore, rather than being exclusive, the formal and substantive theories distinguishing between the constituent power and amendment power mutually reinforce one another. Due to the complexity of the concept of the amendment power and its relations with the constituent power , various versions have developed in the literature to describe these concepts. In the American literature, it was often common to distinguish between framing power and amending power [86].
In order to elude any confusion, some plainly reject the use of the term constituent to describe the amendment power [90]. I agree that the oft-used terms are imprecise. Both the constitution-making and constitution-amending powers are constitutive in the sense that it these are powers to constitute constitutional rules.
Nonetheless the two are not identical. As for the constitution-making power, I reject the use of the term original constituent power. Additionally, constitution-making takes many different forms. Some constitutions were formed in revolutionary circumstances, breaking the previous constitutional order. Others were constituted through international efforts or imposed by foreign and external forces, such as the cases of Japan and Germa ny after or post Iraq [93]. Often, the constitution-making process is exercised in continuity with existing laws or in accordance with pre-determined rules Post Eastern Europe and South Africa [94].
Finally, the exercise of constituent power itself requires a certain representational form [95]. Since constituent power is never purely original , I use the term primary constituent power instead. It is primary not only because it is the initial action, but also because it is principal in its relations with the amendment power.
Congruently, instead of derived constituent power , I use the term secondary constituent power to describe the amendment power.
It is secondary not merely because it necessarily comes chronologically after the constitution-making process, but because it is subordinated to the primary constituent power and inferior to it. To sum up the argument thus far, the amendment power is a constitutional power delegated to a certain constitutional organ.
As a trustee, it possesses only fiduciary power; hence, it must ipso facto be intrinsically limited by nature. Put differently, a vertical separation of powers exists between the primary and secondary constituent powers. As in the horizontal separation of powers, this separation results in a power-block. The holder of the amendment power may be restricted from amending certain constitutional subjects. Identifying the amendment power as a delegated authority is the first step in understanding its limited scope.
I now move on to explain how — according to this theoretical presupposition — the amendment power is limited. Based upon the previous section, this section provides the theoretical ground that elucidates various explicit and implicit limitations on the amendment power. The idea of constitutional entrenchment is debated extensively in the literature [96]. For Kelsen, a norm could be declared as unamendable, yet such a declaration cannot prevent the loss of its validity by a loss of efficacy [].
Moreover, since a provision prohibiting any amendments is not invalid by its very nature, in the case of unamendable provisions, it is not legally possible to amend the protected provisions []. Indeed, nowadays unamendable provisions are commonly considered valid [].
The theory hereby presented supports the validity of unamendable provisions, but relies on questions concerning the sources of constitutional norms. The secondary constituent power which is a delegated power may be restricted by the primary constituent power from amending certain principles, institutions, or provisions. The motives for such restrictions and the aims those are designed to accomplish vary [].
What is clear is that the amendment power, which is established by the constitution and subordinate to it, is exercised solely through the process established within the constitution. It is bound by any explicit limitations that appear in the constitution, if those are set by the primary constituent power.
Viewed from the perspective of the formal theory, explicit unamendability reflects the idea that any exercise of the amendment power must abide by the rules and prohibitions stipulated in the constitution, including substantive limits []. But unamendable provisions may simply derive from constitutional compromise and contingency and cover a wide range of topics, not necessarily the basic principles of the constitutional order [].
These cannot be supported by the substantive theory. The theory of delegation explains all types of unamendable provisions. The secondary constituent power , as a delegated power, acts as a trustee of the primary constituent power. The delegated amendment power is limited according to the conditions stipulated in the constitution, including various substantive limits. What are the legal implications of a conflict between a new constitutional amendment and an unamendable provision, according to the delegation theory?
Unamendable provisions create a normative hierarchy between constitutional norms. Just as the constitution prevails over an ordinary law, a constitutional provision established by the primary constituent power prevails over constitutional provisions established by the secondary constituent power. When resolving conflicts between constitutional provisions unamendable provisions contrasted with later amendments , the paramount factor is not their chronological order of enactment lex posterior derogat priori , but rather, the sources of these constitutional norms.
Thus, the constituent power is divided conforming to a hierarchy of powers — primary and secondary — governed by the principle lex superior derogat inferiori ; the constitutional rule issued by a higher hierarchical authority prevails over that issued by a lower hierarchical authority.
Just as ordinary legislation retreats when it conflicts with constitutional norms, so do constitutional amendments retreat when they conflict with unamendable provisions []. In other words, since the primary constituent power is a superior authority to the secondary one, the normative creations of the latter should withdraw when conflicting with that of the former [].
Unamendable provisions may lose their validity when they face a conflicting valid norm that was formulated by the same authority. A unique difficulty is arising when an amendment stipulates by its own terms that it or other provisions are unamendable. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed. No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law. The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law. Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. Ratified February 7, The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.
Ratified June 15, But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.
Ratified December 6, Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction. Ratified July 9, Note: Article I, section 2, of the Constitution was modified by section 2 of the 14th amendment. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Further, there may be a culture of resistance to, or acceptance of, judicial lawmaking that itself parallels the amendment culture. In other words, it is possible to have a culture that accepts both frequent amendment and judicial lawmaking, as well as a culture in which neither is found. India might be an example of the former type; Japan an example of the latter. Table 1 above summarizes the conceptual possibilities of the relationship between observed frequency of change by judicial review and by constitutional amendment, demonstrating that the two are not everywhere seen as substitutes, but can be in some contexts.
Along with our co-author Zachary Elkins, we have celebrated the virtues of what we might call statutory constitutions: those with flexible amendment thresholds that are fairly detailed. Such constitutions have the virtue of being frequently changed through internal mechanisms, avoiding the more costly route of a total replacement. In such countries, we argue that the stakes of amendment are lower, and so cultural resistance to amendment is less than in societies where it is infrequent.
Globally, constitutional amendment is very frequent. Figure 1 a shows the number of new constitutions passed in any given year. Roughly five countries per year are writing a new constitution, but many more are engaged in amendment, as shown in Figure 1 b.
The number of constitutional amendments promulgated around the world has risen steadily since At present, approximately thirty constitutions are amended each year. One of the drivers of the increase in constitutional amendments, illustrated in Figure 1 b , is decolonization.
Many new countries were created in the s, accompanied by written constitutions, so the absolute number of texts that could potentially be amended became much larger after World War II. Furthermore, many of the initial constitutions adopted in the process of decolonization featured heavy European influence, and so led to local tailoring of the texts after independence.
However, this does not explain the continued increases in the s and s. The increases in the s and s are particularly puzzling because, at the same time when amendments were becoming more common, amendment procedures were becoming more difficult. As illustrated in Figure 2 , constitutional amendments have increasingly required approval from supermajorities in the legislature and by the electorate in referenda.
Given that the constitutional amendment procedures have grown more complicated over time, it seems unlikely that the changes we have witnessed in amendment procedures can explain the increase in amendments illustrated in Figure 1 b.
Amendment procedures that require supermajorities or referenda from — There are two other potential explanations for the trends observed in Figure 1 : either the continued increases in constitutional amendment are the result of greater secular pressures for change or, alternatively, the result of new constitutions being adopted in places and times that are somehow more open to constitutional amendment. After exploring the challenges facing researchers who seek to tie amendment procedure to the amendment rate, we go on to develop a measure of amendment culture as an alternative to institutional factors that constrain amendment.
There is tremendous variation in the amendment procedures used from one country to the next and often even across constitutions within a single country. Constitutions that require numerous political actors and high voting thresholds should be more difficult to amend and, hence, more entrenched than constitutions that lack such stringent amendment procedures. Scholars have attempted to assess this intuition by measuring the rigidity of the amendment procedure, which we will call amendment difficulty.
The idea underlying measures of amendment difficulty is deceptively simple: onerous procedures should lead to lower levels of constitutional amendment. Operationalizing these concepts is hardly straightforward, however.
The basic problem is that the comparative flexibility of the hybrid set of procedural arrangements is not obvious ex ante.
We observe many different kinds of amendment procedures involving different vote thresholds, combinations of institutions, and sequences. Consider several sources of variation:. Steps to passage. The range of different actors and steps involved in constitutional design is very great.
Bicameral and presidential systems will typically include approval by both houses of parliament or an independently elected president. In Scandinavia, amendment usually requires approval by two successive parliaments, or at least that the amendment be proposed in a different parliament than that which approves it Norway.
Public approval is an increasing popular requirement: some 40 percent of constitutions in force include such a requirement. To summarize the design choices, amendments can require:. Multiple alternative procedures. Some constitutions will specify a number of alternative procedures: for example the US Constitution includes passage by legislative supermajority and ratification by state legislatures as one method, and a constitutional convention as another never utilized method.
American states use constitutional conventions more frequently to modify or replace their own constitutions. Substantive variation.
A given constitution may not be consistent across topics. The US Constitution, for example, requires a standard procedure for most topics but effectively requires a unanimity rule for modifications to the principle of equal representation of all states in the Senate. Roznai reports that 40 percent of constitutions have some provisions that are unamendable by any means, whether because they are considered part of the basic structure of the constitution or some other reason.
In many other countries, courts have read certain provisions to be unamendable. Observed variation. We also observe tremendous variation in actual frequency of formal amendment: as mentioned above, the Constitution of Japan has never been amended; the Constitution of India adopted two years later has been amended over times. These sources of variation make development of a cross-national comparative indicator of amendment difficulty quite challenging, and perhaps even impossible, as a theoretical matter.
As long as more than one institution is involved, the relative difficulty of any alternative procedure will depend largely on the configuration of preferences rather than the institutional structure per se.
To illustrate, consider two countries with the same amendment procedure, but with different political configurations: one has a dominant political party that wants to change the constitution and is able to do so regularly, while the other features an array of small parties, most of which oppose constitutional amendment. In this example, the political configuration rather than the institutions explains the likely different outcomes. Despite the challenges to comparing institutional features across countries, there are strong reasons to try to develop a true indicator.
One is that real world constitutional designers face the challenge of writing an amendment rule. This has prompted several scholars, including ourselves, to attempt to develop such an indicator; these indicators are listed in Table 2. The remainder of this section explains the measures in Table 2 and evaluates their validity. Many of the efforts to date start with the observed rate of amendment in any given system. Like amendment difficulty, the amendment rate is a deceptively simple concept: it refers to the amount of constitutional change, or frequency of amendment, that results from formal constitutional amendments over some predetermined period of time.
This requires decisions about the period of time upon which the measure is based and operationalizing the magnitude of constitutional change. We return to these issues below.
The classic paper on the topic of amendment difficulty is by Donald Lutz. She restricts the analysis to the period from through However, instead of modeling all amendments as equally difficult, we assume that the first amendment passed in any given year is the most difficult. Once the constitution is amended once, such a coalition is identified and subsequent amendments are easier to promulgate. Our approach differs from Lutz primarily in that we do not treat state and national constitutions as comparable in light of their very different purposes and scope.
Instead of drawing on the observed rates of amendment from US state constitutions, we model the amendment rate as part of a larger effort to understand constitutional change. We then estimate the effects of particular amendment rules, net of other predictors. Thus, we regress the amendment rate on a set of amendment procedure variables as well as on a host of factors that should predict political reform more generally, including those factors included in our model of constitutional duration.
After estimating the model, we predict the probability of amendment by constraining all variables except those related to the amendment procedure to their mean. The resulting measure is available for all constitutions coded by the CCP. The predicted amendment rate varies from zero amendments per year to 0. Like those of Lutz and Lorenz, our measure is partly endogenous in that it relies on observed variation in amendment rates.
Unlike other measures, however, we do take into account social and political factors that are likely to put pressure on countries to amend the constitution, because we extract our coefficients from a complete model of constitutional replacement.
Note that our analysis does not take into account the problem of multiple alternative procedures mentioned above.
So long as the constitution includes a procedure, we incorporate it into our analysis, regardless of whether it has ever been utilized in practice. Other, simpler approaches are possible if one builds an index based on theoretical expectations about the relationship between the amendment procedure and the amendment rate.
The earliest such measure was created by Lijphart in his comparison of the Westminster and consensus models of government. Similarly, La Porta et al. One point each is given if approval of a majority of the legislature, the head of state, or a referendum is necessary to change the constitution.
This is a simple measure but does not seek to empirically test its validity or power, as it is developed in the context of a different research question. Anckar and Karvonen use a similar type of measure.
They differentiate procedures that use an ordinary majority from a supermajority as well as procedures that require citizen involvement from those that do not. The simplest procedure—i. Procedures which lie between these two in terms of difficulty receive a score between 2 and 9. However, since virtually all constitutions in their sample require supermajority support in the legislature for amendments to be approved and few require supermajority support of the citizens, the pivotal distinction according to their measure is whether or not citizens are involved in the amendment process.
If so, then the constitution receives a score of 6; if not, then the constitution receives a score of 5. Of the 84 constitutions ranked by Anckar and Karvonen, 77 percent i. The final measure is the ordinal one produced by Rasch and Congleton.
The easiest procedures only require a majority of the legislature to pass and are assigned a 1. The hardest procedures require a supermajority in the legislature and multiple actors are involved i. For the two intermediate categories, they assume the number of actors makes the procedure harder than requiring a supermajority in the legislature. As a result, they assign a score of 2 when amendment only requires a supermajority in the legislature and 3 when only a majority is required in the legislature but multiple actors are involved in the process.
Existing measures of amendment difficulty are poorly correlated, indicating low levels of convergent validity. Table 3 presents the correlation between each combination of measures. Only three combinations yield a correlation greater than 0.
The other correlations are all smaller than 0. Typically, in political science, measures of the same concept tend to be highly correlated, which suggests a high degree of what is called convergent validity.
Correlation between measures of amendment difficulty n in parentheses. While the profound methodological challenges that we articulate above suggest that the standard efforts to measure amendment difficulty may never be fully adequate, the very fact that the various institutional measures are so poorly correlated suggests that they are missing something deeper.
We define amendment culture as the set of shared attitudes about the desirability of amendment, independent of the substantive issue under consideration and the degree of pressure for change. In other words, we posit a baseline level of resistance to formal constitutional change in any particular system; as this baseline level increases, the viscosity of the constitutional amendment process decreases even under identical institutional arrangements.
Conversely, the presence of amendment culture suggests that, even if institutional arrangements change, we might not observe a change in the level of demand for amendment. Consider as an example the country of Paraguay, which has had six constitutions since independence in The first did not even have an amendment procedure. However, the Constitution only requires an absolute majority in stage 2; introduces the possibility of initiatives in stage 1; and replaced the constituent assembly in stage 3 with a public referendum.
There has been at least one additional proposal under the Constitution, but it was rejected by the legislature. Why might amendment culture exist? Start with the basic intuition common to virtually all accounts of constitutionalism: barriers to amendment are not merely institutional. In these countries, we are told that political barriers to changing rules are the source of stability and that these political barriers function so well that additional institutional protections are unnecessary though, as Stephen Gardbaum has pointed out, they have been introduced to some degree in recent years.
That political constitutionalism is even a possibility in countries like the Israel, New Zealand, and the United Kingdom implies some cultural barrier to revision of the rules to benefit narrow partisan interests. Now consider a system which does have institutional barriers to amendment, like the United States. Suppose further that the political weight assigned to the value of entrenchment differs across countries and constitutional cultures.
If in some countries, the constitution is treated as a sacred text, never to be touched except for matters of major import ance, while in other countries, the constitution is of no great normative significance, we would observe different values on entrenchment.
If this is true, then the observed rate of constitutional amendment in any particular country might reflect not only institutional factors, or the baseline pressures caused by political and social change, but also these different weights ascribed to the constitution itself.
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