Nonconstitutional Amendments

2009 ◽  
Vol 22 (1) ◽  
pp. 5-47 ◽  
Author(s):  
Richard Albert
Keyword(s):  
United States ◽  
South Africa ◽  
The United States ◽  
Comparative Perspective ◽  
Constitutional Amendment ◽  
Constitutional Change ◽  
Constitutional Democracy ◽  
Liberal Democratic ◽  
Perspective Drawing ◽  
Peculiar Phenomenon

The constitutional text in a constitutional democracy does not necessarily constrain constitutional change. Quite the contrary, constitutional change in a constitutional democracy often occurs in ways that depart from the rigid procedures governing constitutional amendment enshrined in the text of the constitutional.In this article, I illuminate this peculiar phenomenon in comparative perspective, drawing from the constitutional traditions of Canada, Germany, India, South Africa and the United States. In addition to illuminating distinctions in the amendment practices of liberal democratic constitutional states, I deploy those contrasts as a springboard to substantive insights about fundamental principles of statehood, namely sovereignty and legitimacy.

scholarly journals A Suitable Paradigm: the Indian Founding and the world

Jus Cogens ◽  
2022 ◽  
Author(s):  
James Fowkes
Keyword(s):  
United States ◽  
South Africa ◽  
The United States ◽  
Constitutional Democracy ◽  
Paradigm Case ◽  
Post Colonial ◽  
South Africans ◽  
The Us ◽  
The World ◽  
Do So

AbstractWhat is the relevance of the Indian case for South Africa? And what should South Africans, and the rest of the world, make of the claim in Madhav Khosla’s India’s Founding Moment that we should recognize India as ‘the’ paradigm case for modern constitutional democracy? The constitutional projects of India and South Africa are naturally connected, but Khosla’s book helps to bring out what is perhaps the most important of the connections. Both are founded on an insistently democratic constitutionalism, in places where most inhabitants had long been told they were not suited or ready for democracy. Both display the conviction that boldly giving the vote to all, in these circumstances, is a powerful way to construct a democracy. This idea is crucial for understanding many aspects of both constitutions. This makes India a natural paradigm case for South Africa and many others. The stronger claim, that it is ‘the’ paradigm case and should succeed the United States to this status, can become more complicated once one tests it out globally (like the US claim). Finland and Ireland are especially strong and earlier examples of what Khosla sees as ground-breaking in India. Latin America’s somewhat different post-colonial trajectory makes India a more imperfect paradigm there. But that said, treating India and its founding as paradigmatic may well be the single best step to take for a more balanced view of the constitutional world, and this book’s elegant erudition makes it a real scholarly pleasure to do so.

The Process of Constitutional Amendment: Law, History, and Politics

1986 ◽  
Vol 49 ◽  
pp. 16-19 ◽  
Author(s):  
Walter Dellinger
Keyword(s):  
United States ◽  
Historical Context ◽  
The United States ◽  
United States Constitution ◽  
Constitutional Amendment ◽  
The Political ◽  
Constitutional Change ◽  
Law And Policy ◽  
The Subject ◽  
Constitutional System

The first part of the seminar examined a mystery that reverberates through two centuries: how does a constitutional system of government, itself born of revolution, properly provide for its own revision — provide literally for its own reconstitution? We first considered the political and intellectual assumptions against which Article V of the United States Constitution — the amendment article — was drafted, and then looked briskly at the historical context in which the Constitution's twenty-six amendments have been adopted. With this as background, we addressed a range of issues concerning the law and policy of constitutional change that are currently the subject of lively dispute in America.

scholarly journals Four Unconstitutional Constitutions and their Democratic Foundations

2018 ◽  
Author(s):  
Richard Albert
Keyword(s):  
United States ◽  
South Africa ◽  
International Law ◽  
The United States ◽  
Constitutional Amendment ◽  
The World

Cornell International Law Journal: Vol. 50 : No. 2 , Article 1.The present fascination with the global phenomenon of an unconstitutional constitutional amendment has left open the question whether a constitution can be unconstitutional. To declare an entire constitution unconstitutional seems different in both kind and degree from invalidating a single amendment for violating the architectural core of a constitution, itself undoubtedly an extraordinary action. In this Article, I illustrate and evaluate four different conceptions of an unconstitutional constitution. Each conception draws from a different constitution currently in force around the world, specifically the Constitutions of Canada, Mexico, South Africa and the United States. Despite their unconstitutionality in different senses of the concept, each constitution is nonetheless rooted in democratic foundations. The strength of these foundations, however, varies as to each.

Conclusion

2019 ◽  
pp. 261-272
Author(s):  
Richard Albert
Keyword(s):  
United States ◽  
Great Britain ◽  
Costa Rica ◽  
Rule Of Law ◽  
The United States ◽  
Constitutional Amendment ◽  
Constitutional Change ◽  
Democratic Values ◽  
The Rule Of Law ◽  
Careful Thought

There are presently too few resources to guide constitutional designers in building the rules of constitutional amendment. This chapter offers a roadmap for designing constitutional amendment rules. As is true of building an edifice, constructing the rules of constitutional change requires careful thought about design and operation. This chapter explains that amendment rules are organized around four sets of fundamental choices requiring designers to set the foundations of the polity, to choose among pathways to initiate, propose and ratify an amendment, to select specifications that will put the foundations and pathways into operation, and finally to determine how and where amendments will be recorded. This chapter also explains that formal amendment as a practice reflects the democratic values of the rule of law, including predictability, transparency, and publicity. There are of course advantages to informal amendment and methods of change that violate the codified rules of change, but there are even greater democracy-enhancing virtues that are possible only with formal amendment. This chapter considers constitutions from Austria, Costa Rica, Great Britain, India, Ireland, Spain, Switzerland, and the United States.

The United States and South Africa in Comparative Perspective: Three Recent Books

1983 ◽  
Vol 26 (3/4) ◽  
pp. 197
Author(s):  
David A. Waas ◽  
John W. Cell ◽  
George M. Fredrickson ◽  
Howard Lamar ◽  
Leonard Thompson
Keyword(s):  
United States ◽  
South Africa ◽  
The United States ◽  
Comparative Perspective

Alexander Hamilton and the Early Republic in Edwardian Imperial Thought

2019 ◽  
Vol 12 (1) ◽  
pp. 28-50 ◽  
Author(s):  
Patrick M. Kirkwood
Keyword(s):  
United States ◽  
South Africa ◽  
Early Republic ◽  
The United States ◽  
Alexander Hamilton ◽  
George Washington ◽  
American Federation ◽  
Treaty Of Versailles ◽  
The Federalist ◽  
The Federalist Papers

In the first decade of the twentieth century, a rising generation of British colonial administrators profoundly altered British usage of American history in imperial debates. In the process, they influenced both South African history and wider British imperial thought. Prior usage of the Revolution and Early Republic in such debates focused on the United States as a cautionary tale, warning against future ‘lost colonies’. Aided by the publication of F. S. Oliver's Alexander Hamilton (1906), administrators in South Africa used the figures of Hamilton and George Washington, the Federalist Papers, and the drafting of the Constitution as an Anglo-exceptionalist model of (modern) self-government. In doing so they applied the lessons of the Early Republic to South Africa, thereby contributing to the formation of the Union of 1910. They then brought their reconception of the United States, and their belief in the need for ‘imperial federation’, back to the metropole. There they fostered growing diplomatic ties with the US while recasting British political history in-light-of the example of American federation. This process of inter-imperial exchange culminated shortly after the signing of the Treaty of Versailles when the Boer Generals Botha and Smuts were publicly presented as Washington and Hamilton reborn.

Liberal Internationalism from George W. Bush to Barack Obama

2017 ◽  
Author(s):  
Tony Smith
Keyword(s):  
United States ◽  
The United States ◽  
Barack Obama ◽  
Democratic Peace ◽  
War On Terrorism ◽  
Global War On Terrorism ◽  
Liberal Internationalism ◽  
Liberal Democratic ◽  
The Subject ◽  
Global War

This chapter examines the United States' liberal democratic internationalism from George W. Bush to Barack Obama. It first considers the Bush administration's self-ordained mission to win the “global war on terrorism” by reconstructing the Middle East and Afghanistan before discussing the two time-honored notions of Wilsonianism espoused by Democrats to make sure that the United States remained the leader in world affairs: multilateralism and nation-building. It then explores the liberal agenda under Obama, whose first months in office seemed to herald a break with neoliberalism, and his apparent disinterest in the rhetoric of democratic peace theory, along with his discourse on the subject of an American “responsibility to protect” through the promotion of democracy abroad. The chapter also analyzes the Obama administration's economic globalization and concludes by comparing the liberal internationalism of Bush and Obama.

Global Power Shift

2017 ◽  
Author(s):  
Roberts Cynthia ◽  
Leslie Armijo ◽  
Saori Katada
Keyword(s):  
United States ◽  
South Africa ◽  
Data Analysis ◽  
The United States ◽  
Rising Powers ◽  
Extensive Data ◽  
Power Shift ◽  
Multiple Dimensions ◽  
Global Power ◽  
Rise Of China

This chapter evaluates multiple dimensions of the global power shift from the incumbent G5/G7 powers to the rising powers, especially the members of the BRICS (Brazil, Russia, India, China, and South Africa). Taking note of alternative conceptualizations of interstate “power,” the text maps the redistribution of economic capabilities from the G7 to the BRICS, most particularly the relative rise of China and decline of Japan, and especially Europe. Given these clear trends in measurable material capabilities, the BRICS have obtained considerable autonomy from outside pressures. Although the BRICS’ economic, financial, and monetary capabilities remain uneven, their relative positions have improved steadily. Via extensive data analysis, the chapter finds that whether one examines China alone or the BRICS as a group, BRICS members have achieved the necessary capabilities to challenge the global economic and financial leadership of the currently dominant powers, perhaps even the United States one day.

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