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Artigos • Rev. Investig. Const. 2 (1) • Jan-Apr 2015 • https://doi.org/10.5380/rinc.v2i1.43100   copy

The expressive function of constitutional amendment rules* * This project was supported by the Boston College Law School Fund. This article first appeared in Volume 59:2 of the McGill Law Journal, published in 2013. For helpful comments and conversations, I thank Carlos Bernal-Pulido, Brannon Denning, Rosalind Dixon, Oran Doyle, Tom Ginsburg, Claudia Haupt, Ran Hirschl, Rick Kay, Mark Kende, David Landau, Will Partlett, Vlad Perju, Arie Rosen, Yaniv Roznai, Ozan Varol, Tom Kohler, and John Vile. I am grateful for the useful suggestions and criticisms I received from the three anonymous external reviewers who recommended this submission for publication. I have also benefitted from presenting earlier versions of this article at Indiana University–McKinney School of Law, the University of San Francisco Law School, the 2013 Annual Meeting of the Law & Society Association, and in the 2012–13 AADS works-in-progress lecture series at Boston College. I am also grateful to the editors of the McGill Law Journal for their outstanding editorial contributions to this article.

A relevante função das regras de mudança constitucional

Authorship SCIMAGO INSTITUTIONS RANKINGS

Abstract

The current scholarly focus on informal constitutional amendment has obscured the continuing relevance of formal amendment rules. In this article, I return our attention to formal amendment in order to show that formal amendment rules-not formal amendments but formal amendment rules themselves-perform an underappreciated function: to express constitutional values. Drawing from national constitutions, in particular the Canadian, South African, German, and United States constitutions, I illustrate how constitutional designers may deploy formal amendment rules to create a formal constitutional hierarchy that reflects special political commitments. That formal amendment rules may express constitutional values is both a clarifying and a complicating contribution to their study. This thesis clarifies the study of formal amendment rules by showing that such rules may serve a function that scholars have yet to attribute to them; yet it complicates this study by indicating that the constitutional text alone cannot prove whether the constitutional values expressed in formal amendment rules represent authentic or inauthentic political commitments.

Keywords:
constitutional amendment rules; formal amendment rules; constitutional values; constitutional hierarchy; formal entrenchment

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