Comparative Constitutional Design

The United States Constitution could soon be re-written by the states.  Article V of the Constitution authorizes two-thirds of the state legislatures to bypass Congress and demand a convention to initiate federal constitutional amendments addressing any number of issues.  States have adopted resolutions calling for a convention to consider amendments that would, among other things, require a balanced federal budget, eliminate life tenure for Supreme Court Justices, constitutionalize universal healthcare, and even invalidate bulwark rulings such as Roe v. Wade.  In April 2014, Michigan arguably became the thirty-fourth state to adopt such a resolution, and convention supporters believe that a convention should now be convened.     

Although many observers believe that the current convention movement is a political gimmick unlikely to succeed, Article V’s amendment procedures raise fundamental questions about how the amendment power should be allocated between levels of government.  Why should subnational units such as states, provinces, and regions have significant influence in the amendment of national constitutions?  How do other countries allocate the amendment power between levels of government?  What are the likely risks and benefits that constitutional designers should consider when allocating the amendment power?  Despite recent interest in constitutional amendment rules, scholars have not fully addressed many of these issues. 

This article presents findings and analysis from a comprehensive study of decentralization in national constitutional amendment rules.  It provides constitutional designers and scholars with a useable model for understanding how and why constitutional amendment rules might be structured to include subnational units in the amendment process.  Based on an exhaustive review of the amendment rules in the approximately 191 extant national constitutions, the article claims that there are currently five dominant decentralization mechanisms.  The article further claims that although there are real risks associated with strong decentralization of the amendment power, there are several sound normative justifications for including subnational units in the amendment process.  Finally, although one might expect decentralization of the amendment power to correspond to lower amendment rates, the article finds that amendment rates in strongly decentralized systems are actually higher than amendment rates in countries with centralized procedures.   

In sum, this article contributes to the study of comparative constitutional design by providing a systematic approach to decentralization of the amendment power.

As the world grows ever smaller from the impact of globalization and technological advance—which effectuate the interdependence, cross-pollination, and ease of communication between the various cultures and nations of the world—increasing opportunities arise for foreign and international actors to influence political and legal reform abroad.  In many instances, this influence is voluntarily sought and given. In others it is imposed on averse or apathetic populations. Though the manner, means, and degrees of such influence take many different forms,  the simple fact remains that increasing numbers of persons and institutions are advising on political and legal reform abroad, and that there have been both success stories and notable failures.  Some scholars have expressed reservation at the possibility for such advisors positively to affect such processes,  but the increasing opportunities and the emergence of expertise in the field of constitutional design can, if approached properly, promote valued ends.
          Given the professionalization of many disciplines, there is no reason for people to work in the dark when expertise exists.  But what is the nature of this expertise and how can we ensure that it serves the interest of those seeking guidance? Drawing on various ethical traditions, lessons from recent constitutional reform efforts and the rich history of foreign “borrowing” of legal traditions, this paper seeks to build upon the friendship model of constitutional advising originally advanced by David Williams to construct a professional ethic for the work of constitutional advisors engaged in work in foreign contexts.  In doing so, this paper will propose a framework for thinking about constitutional advising, ultimately distilling a set of fundamental principles to guide consulting work and engaging in an analysis of the various mechanisms that can operate to incentivize the ethical conduct of this emerging profession.
          The propagation of such a set of guidelines is vital to both the interests of the emerging practice of constitutional design as an interdisciplinary field of law and policy and to the interests of those calling upon consultants to enable them in the complicated process of establishing a system of self-governance.  Ultimately, the paper recognizes one primary ethical dilemma regularly encountered by those engaged in the work of constitutional advising: the conflict between the institutional mission or personal values of the advisors and the self-conceived interests of those seeking a new fundamental legal ordering. In reconciling this inherent tension, this paper ultimately proposes a set of guidelines for professional conduct centered around the ethical principle of the “duty to enable,” gleaning duties to third persons and the expectations of competence, diligence, communication, independence, and truthfulness from the ethic of enabling that is central to this profoundly important work.