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Mark Tushnet, Amendment theory and constituent power, in Comparative Constitutional Theory (Gary Jacobsohn & Miguel Schor eds., 2025).


Abstract: Constitutions typically contain provisions describing how they can be amended. Yet, constitution-drafters and, more important, those who try to theorize about constitutions, might see provisions purporting to prescribe precise mechanisms for constitutional amendment as somewhat paradoxical. The constitution is the expression of the people's will, and yet prescribing amendment procedures means that sometimes the constitution will thwart the people's will. This occurs when a proposed amendment cannot work its way through the prescribed procedures even though the amendment “actually” or “in reality” reflects the people's will. This chapter first describes the discussions of amendments in two major constitution-framing efforts, the US Constitutional Convention of 1789 and the French Constituent Assembly of 1789–91. Then it develops a perspective based on the idea of constitutions as vehicles for the exercise of a people's power to constitute itself and its government. That perspective in turn is deployed to discuss the possibility that constitutional amendments adopted through constitutionally regular procedures might nonetheless be unconstitutional. The concluding section suggests that, in light of the theories outlined earlier, we should understand constitutional provisions dealing with amendments—procedurally and substantively—as prudential recommendations to the polity rather than as binding legal constraints. They are only recommendations because the procedures, like the constitution's substantive provisions, might be flawed. Note, though, that treating amendment procedures as recommendations deprives them of the character, associated with the rest of the constitution, that the constitution is binding law. That in turn raises the possibility of treating the entire constitution as a set of recommendations rather than as binding law.