The World's Most Difficult Constitution to Amend?

University of Texas at Austin - School of Law; University of Texas at Austin - Department of Government; Université Paris II - Panthéon-Assas; Universidad de Especialidades Espíritu Santo; Universidad Externado de Colombia - Facultad de Derecho; São Paulo Law School of Fundação Getulio Vargas FGV DIREITO SP; University of Toronto - Faculty of Law; University of Ottawa - Faculty of Law; Reichman University - Interdisciplinary Center (IDC) Herzliyah - Harry Radziner School of Law; Airlangga University; Yale University; Maharashtra National Law University Mumbai

Date Written: 2022

Abstract

America’s frozen constitution could well be the world’s most difficult to amend. Far from being a badge of honor, the distinction of topping the global charts on constitutional rigidity is cause for alarm. Ancient and virtually impervious to amendment, the United States Constitution has withstood all modern efforts to renovate its outdated architecture on elections, federalism, rights, and beyond. In the last half-century alone, democratic reformers have proposed thousands of amendments to make the Constitution more equal, more inclusive, and more just. But each proposal has failed, few ever making it beyond the point of initiation. The current dynamics of American constitutional politics suggest no reason to expect anything different in the near- to mid-term. What does this mean for the future of democracy in the United States? In this Essay, I examine the sources of amendment difficulty in the United States and I explain why all proposals to amend the Constitution are for now doomed to failure. I close by tracing an alternative path proposed in the founding era that could have saved the Constitution from its present state of unamendability.

Keywords: United States Constitution, Constitutional Amendment, Constructive Unamendability, Democratic Reform, Constitutional Reform, Comparative Amendment Difficulty, Thomas Jefferson

Suggested Citation: Suggested Citation

Albert, Richard, The World's Most Difficult Constitution to Amend? ( 2022). 110 California Law Review 2005 (2022), U of Texas Law, Legal Studies Research Paper , Available at SSRN: https://ssrn.com/abstract=4323143

Richard Albert (Contact Author)

University of Texas at Austin - School of Law ( email )

727 East Dean Keeton Street
Austin, TX 78705
United States
617-756-2622 (Phone)

University of Texas at Austin - Department of Government ( email )

College of Liberal Arts
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Austin, TX 78712
United States

Université Paris II - Panthéon-Assas ( email )

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Paris cedex 06, 75231
France

Universidad de Especialidades Espíritu Santo ( email )

Facultad de Derecho
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Samborondón, 092301
Ecuador

Universidad Externado de Colombia - Facultad de Derecho

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Calle 12 0 83
Bogota D.C, Cundinamarca 3456
Colombia

São Paulo Law School of Fundação Getulio Vargas FGV DIREITO SP

R. Rocha, 233, Bela Vista
São Paulo, 01330-000
Brazil

University of Toronto - Faculty of Law ( email )

78 and 84 Queen's Park
Toronto, Ontario M5S 2C5
Canada

University of Ottawa - Faculty of Law ( email )

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Ottawa, Ontario K1N 6N5
Canada

Reichman University - Interdisciplinary Center (IDC) Herzliyah - Harry Radziner School of Law ( email )

P.O. Box 167
Herzliya, 46150
Israel

Airlangga University

Dharmawangsa Dalam Selatan
Surabaya, East Java 60286
Indonesia

Yale University

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New Haven, CT CT 06520
United States

Maharashtra National Law University Mumbai ( email )

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Hiranandani Gardens, Powai, Mumbai 400076
Maharashtra
India