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WHY RAWLS IS WRONG

ABOUT CONSTITUTIONAL AMENDMENT

RICHARD ALBERT†

Abstract

In his celebrated book Political Liberalism, John Rawls invites us to imagine a hypothetical
Twenty-Eighth Amendment to the United States Constitution that would “repeal the First
Amendment” and establish a “state religion.” Would it be a lawful amendment, he asks? For
Rawls, the answer is no: the amendment would be “invalid.” But is Rawls right? In this chapter
for the Edward Elgar Research Handbook on Constitutionalism and Legal Theory, I explain why
Rawls is wrong that the U.S. Constitution sets substantive restrictions on constitutional reform. I
then map the landscape of constitutional change around the world, using Rawls’ hypothetical
Twenty-Eighth Amendment as my point of departure. Along the way, I illuminate the various
methods and means of constitutional change, the precise terms we should use when referring to
each, and the stakes involved in distinguishing formal from informal constitutional change. My
objectives are to correct Rawls’ misunderstanding of constitutional amendment and to canvass the
legal, political, and theoretical terrain of how constitutions change, and how they do not.

Contents

Introduction—A Hypothetical Twenty-Eighth Amendment 2

I. The Forms of Formal Constitutional Change 4

A. Constitutional Amendment, Dismemberment, and Replacement 5

B. Rawls on Constitutional Reform 8

II. The Methods of Informal Constitutional Change 9

A. Time and Tradition 10

B. Identifying and Enforcing Unwritten Constitutional Norms 14

III. Restricting Constitutional Change 17

A. Constitutional Design 17
B. Constitutional Interpretation 20

Conclusion—A Springboard to the World 23

†
Richard Albert, William Stamps Farish Professor in Law, Professor of Government, and Director of Constitutional
Studies, The University of Texas at Austin. Email: richard.albert@law.utexas.edu. Comments are welcome—and they
will be useful—as this paper is a work-in-progress. Please note that the final draft must respect an imposed word limit.
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Introduction—A Hypothetical Twenty-Eighth Amendment

In his celebrated book Political Liberalism, John Rawls invites us to imagine a hypothetical

Twenty-Eighth Amendment to the United States Constitution that would “repeal the First

Amendment” and establish a “state religion.”1 Would it be a lawful amendment, he asks? For

Rawls, the answer is firmly no. This amendment would be “invalid” because it “fundamentally

contradicts the constitutional tradition of the oldest democratic regime in the world.”2

Rawls relies on time and tradition to make the case against this religion amendment. He

observes that the First Amendment has been law for centuries, and suggests that its endurance has

set a legally enforceable expectation that all future amendments made using Article V must leave

the Establishment Clause untouched as a permanent, unamendable rule in the U.S Constitution.3

Rawls is partly correct but mostly wrong. He is right that repealing the First Amendment

would mark a pivotal turning point in the lifetime of the U.S. Constitution. No one can reasonably

deny that the First Amendment is a core pillar in America’s constitutional edifice. It is arguably

the most important of all amendments in the Bill of Rights; its protections for assembly, belief,

expression, and the press set the foundation for America’s robust constitutional democracy.4

Yet Rawls is wrong that his hypothetical Twenty-Eighth Amendment would be legally

invalid under the U.S. Constitution. The U.S. Constitution does not recognize the possibility that

an Article V amendment can ever be invalidated on the substantive grounds he suggests.5 As I will

1
John Rawls, Political Liberalism (Columbia University Press, 1993), at 238.
2
Ibid.
3
Article V codifies the procedures for constitutional reform in the U.S. Constitution. See U.S. Constitution, art. V.
4
U.S. Constitution, amend. I (“Congress shall make no law respecting an establishment of religion, or prohibiting the
free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to
assemble, and to petition the Government for a redress of grievances.”).
5
But the U.S. Supreme Court has invalidated state constitutional amendments for violating the Constitution. See, e.g.,
Romer v. Evans, 517 U.S. 620 (1996); Reitman v. Mulkey, 387 U.S. 369 (1967); Richard Albert, “American
Exceptionalism in Constitutional Amendment” (2015) 69 Arkansas Law Review 217 at 244-45.
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show, whether an amendment contradicts a long-standing tradition in the United States is irrelevant

to its legal validity. Neither the text of the Constitution nor its authoritative interpretation by the

Supreme Court opens a plausible path to invalidate an amendment for any reason related to the

endurance of a constitutional rule. Constitutional law and practice confirm this crucial fact of law.

Perhaps Rawls is instead arguing the normative point, not the descriptive one, namely that

an amendment contradicting a long-standing constitutional tradition in the United States should be

invalid. This seems unlikely, however, given that Rawls’ own justification for invalidating the

hypothetical Twenty-Eighth Amendment could be used to invalidate the Thirteenth Amendment.6

Enacted in 1865, the Thirteenth Amendment abolished America’s original sin of legal slavery. But

that evil institution had long been protected under law, well before even the Constitutional

Convention met in Philadelphia in 1787 to revise the Articles of Confederation. Shifting the

inquiry from what the Constitution requires as a matter of Supreme Court case law to what the

Constitution should require as a matter of justice therefore cannot rescue Rawls’ argument that

long-standing tradition is sufficient to transform an amendable rule into an unamendable one.

There is nonetheless much to learn from Rawls’ misunderstanding of constitutional

amendment in the United States. His fictional Twenty-Eighth Amendment raises questions both

substantive and procedural that push the boundaries of our knowledge about how constitutions

change. What role do time and tradition play in ordering a constitution’s hierarchy of values? How

does a constitutional rule evolve from amendable to unamendable without any intervening

constitutional reform? Must a constitutional amendment comply with any unwritten rules; if so,

6
U.S. Constitution, amend. XIII (“Section 1. Neither slavery nor involuntary servitude, except as a punishment for
crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to
their jurisdiction. Section 2. Congress shall have power to enforce this article by appropriate legislation.”).
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how are we to identify those unwritten rules? And what is the remedy—and who must enforce it—

when a constitutional amendment is thought to violate a rule that is nowhere written down?

In this chapter prepared for the Edward Elgar Research Handbook on Constitutionalism

and Legal Theory, I seek to answer these questions by mapping the landscape of how constitutions

change, using Rawls’ hypothetical Twenty-Eighth Amendment as my point of departure. I will

advance three propositions, each blending theory with practice, and each with its own illustrations

drawn from abroad: (1) a constitution may change both formally and informally, meaning

respectively with or without an accompanying alteration to its text; (2) some reforms identified as

constitutional amendments should be understood as something altogether different; and (3) the

U.S. Constitution does not today recognize unamendability either as a constitutional design or as

the product of judicial interpretation, but constitutions around the world recognize both forms of

unamendability. Along the way, I will illuminate the various methods and means of constitutional

change, the precise terms we should use when referring to each, and the stakes involved in

distinguishing formal from informal constitutional change in the United States and beyond. In the

end, we will have corrected Rawls’ mistakes in constitutional amendment, all while canvassing

the legal, political, and theoretical terrain of how constitutions change, and how they do not.

I. The Forms of Formal Constitutional Change

There are two categories of constitutional change: formal and informal. Formal change

entails a modification of the constitution that is memorialized with a new writing: either an

alteration to the text(s) of the body of higher law recognized as “the constitution” or a replacement

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of the higher law text(s) with an altogether new text(s) of higher law. 7 In this Part, I will review

the forms of formal constitutional change; the next will focus on informal constitutional change.

A. Constitutional Amendment, Dismemberment, and Replacement

There are three different types of formal constitutional change. These three types of formal

constitutional change are distinguishable according to their procedure, scope, and outcome. The

first type is a constitutional amendment, the second is a constitutional dismemberment, and the

third is a constitutional replacement. In each of these three cases, the constitutional text is altered.

In the first two, the text is altered but remains in force; in the third, the text is altogether replaced.

An amendment is an alteration to the higher law that does not exceed the boundaries of the

constitution. Properly defined, an amendment keeps the constitution coherent with its current

design, framework, and underlying presuppositions. An amendment, accordingly, continues the

constitution-making project in a manner consistent with the constitution at the time of the change.

The power of constitutional amendment may be used to achieve one of four principal

purposes. It may be used to correct, elaborate, reform, or restore the constitution. For instance, an

amendment may be enacted to correct the constitution’s design where it is necessary or useful to

align expectations with the operation of the constitution, as occurred with the Twelfth Amendment

to the U.S. Constitution.8 An amendment may alternatively be elaborative, as in the case of the

Nineteenth Amendment.9 Like a correction, an elaboration continues the constitution-making

7
I refer to a text or texts comprising the body of law recognized as “the Constitution” in a particular jurisdiction
because some constitutions are uni-textual while others are multi-textual, consisting of multiple texts of higher law,
each equally supreme throughout the jurisdiction. See Richard Albert, “Multi-Textual Constitutions” (2023) 109
Virginia Law Review 1629.
8
The Twelfth Amendment to the U.S. Constitution is an example of a corrective amendment. It requires Electoral
College electors to cast two differentiated votes for their leaders in the executive branch—one for president and
another for vice-president—rather than two votes for president, which the original Constitution required. Compare
U.S. Constitution, art. II, sec. 1, cl. 3, with U.S. Constitution, amend. XII.
9
The Nineteenth Amendment to the U.S. Constitution—which prohibits states from denying the right to vote on the
basis of sex—is an example of an elaborative amendment. See U.S. Constitution, amend. XIX.
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project in line with the current design of the constitution. But instead of repairing an error in the

constitution, an elaboration advances the meaning of the constitution within the boundaries of its

existing design. An amendment may also be reformative insofar as it is enacted to revise a rule in

the constitution without undermining the constitution’s core principles and without changing its

operation in a transformative way. The Twentieth Amendment is a useful illustration.10 Lastly, an

amendment, like the Twenty-Second, may be restorative: it may return the constitution to an earlier

meaning that has either been lost or forgotten.11 In all cases, a constitutional amendment—in order

to be properly understood as an amendment—must entail unbroken unity with the constitution

being amended. It cannot push the boundaries of the constitution further than its limits.

In contrast, a constitutional dismemberment is an alteration that exceeds the boundaries of

the existing constitution. It entails a fundamental transformation of one or more of the

constitution’s core commitments: it alters the identity, the fundamental rights, or the basic structure

of the constitution. A constitutional dismemberment, then, is a transformative constitutional

change that seeks deliberately to disassemble one or more of a constitution’s elemental parts. To

use a rough analogy, the purpose of a constitutional dismemberment is to unmake the constitution.

There are examples of constitutional dismemberment in the United States. The changes

described as the “Reconstruction”—the Thirteenth, Fourteenth, and Fifteenth Amendments—are

better understood as constitutional dismemberments, not constitutional amendments. None of them

can be said to have corrected, elaborated, reformed, or restored the meaning of the constitution as

it was understood at the time of its enactment. None corrected the constitution in the way of fixing

10
The Twentieth Amendment to the U.S. Constitution—which changes the date of the president’s installation from
March 4 to January 20—is an example of a reformative amendment. See U.S. Constitution, amend. XX.
11
The Twenty-Second Amendment is an example of a restorative amendment. It codifies the practice initiated by
George Washington’s decision to serve as president for no more than two terms. See U.S. Constitution, amend. XXII.
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an error in its operation, nor did any of them elaborate the constitution’s meaning consistent with

its legal understanding before Reconstruction. They did not reform the constitution in a manner

that retains fidelity with its existing design, nor did any of these three formal constitutional changes

seek to restore the meaning of the constitution to what it once meant under law. These reforms had

an altogether different purpose and effect for the Constitution and the country: they demolished

the infrastructure of slavery in the original constitution. They tore down the major pillars of

America’s slavocratic constitution: the Three-Fifths Clause,12 the Fugitive Slave Clause,13 the

Migration or Importation Clause,14 and the Proportionate Tax Clause.15 The Reconstruction

exceeded the scope of amendments; it amounted to constitutional dismemberments that recast the

constitution while keeping legal continuity within the regime. To describe it more vividly, the

Reconstruction set the country on a new course, transformed the purpose and identity of the

constitution, and remade the fundamental commitments of the constitution in both law and society.

The third type of formal change is a constitutional replacement. It occurs when a new

constitution is enacted to replace the old. The constitution-making process may, for example,

involve a special assembly, it may entail a national referendum to ratify the constitution, or it may

require heightened legislative supermajorities to create the new constitution.16 Examples of

constitutional replacements abound, as the world has witnessed the birth and death of hundreds of

constitutions since the first modern constitution in 1787.17 Drawing again from the United States,

the coming-into-force of the new U.S. Constitution in 1789 doubled as a replacement of the 1781

12
U.S. Constitution, art. I, § 2, cl. 3.
13
Ibid. art. IV, § 2, cl. 3.
14
Ibid. art. I, § 9, cl. 1.
15
Ibid. art. I, § 9, cl. 4.
16
Tom Ginsburg et al., “Does the Process of Constitution-Making Matter?” (2009) 5 Annual Review of Law and Social
Sciences 201.
17
See Zachary Elkins, Tom Ginsburg & James Melton, The Endurance of National Constitutions (Cambridge
University Press, 2009).
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Articles of Confederation.18 These, then, are the three types of formal constitutional change: (1)

constitutional amendment; (2) constitutional dismemberment; and (3) constitutional replacement.

B. Rawls on Constitutional Reform

The root of Rawls’ misunderstanding of his own hypothetical Twenty-Eighth Amendment

is a failure to distinguish among these three types of formal constitutional change. Rawls instead

understands formal constitutional change in binary terms: either a reform properly amends a

constitution—in which case he understands it as an amendment—or a reform is revolutionary and

so fundamentally transforms a constitution that we must regard that reform as creating a new

constitution, even though no new constitution has been promulgated. On this point, Rawls echoes

one of the central propositions in the conventional theory of constitutional change: a formal

constitutional amendment should be understood as creating a new constitution if it amounts to a

transformational reform of the constitution, even though the reform is made using the procedure

of amendment and appears in the existing constitution as an amendment.19 The conventional theory

is incorrect for an obvious reason: the revolutionary reforms it treats conceptually as new

constitutions are identified in the revised constitution as formal amendments like all others. The

conventional theory therefore demands mental gymnastics that do not align theory with actuality.

This presents a daunting challenge for Rawls: how to reconcile form with substance, given

a reform that is formally not a new constitution but in its substance is a colossal constitutional

change? Any resolution must explain the formal effect of the reform as something other than

constitutional replacement while simultaneously recognizing that the content of the reform

amounts substantively to something more than a mere amendment. The answer cannot be what

See Jack Rakove, “The Legacy of the Articles of Confederation” (1982) 12 Publius 45 at 45.
18
19
For a discussion of the conventional understanding of constitutional change, see Richard Albert, Constitutional
Amendments: Making, Breaking, and Changing Constitutions (Oxford University Press, 2019) at 68-76.
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Rawls advances: that the Twenty-Eighth Amendment—which we are invited to imagine repeals

the First Amendment and establishes an official religion—would be a revolution “in the proper

sense, and not a valid amendment of the constitution.”20 That answer is at best imprecise because

the reform would appear in the constitution as an amendment, not as a new constitution. The better

path is to understand the hypothetical Twenty-Eighth Amendment as neither a constitutional

amendment nor a new constitution, but rather as a constitutional dismemberment. It is a

constitutional transformation that must be credited both as more than a simple constitutional

amendment because it violates the constitution’s core commitments, and as less than a

constitutional replacement because the change does not result in promulgating a new higher law.

II. The Methods of Informal Constitutional Change

In addition to misunderstanding the forms of formal constitutional change, Rawls likewise

misses a key point about informal constitutional change, as I will explain below. But first, a brief

definition of informal constitutional change will help: in contrast to formal constitutional change—

which refers to a textual change to the higher law—informal change entails a modification to the

authoritative meaning of the constitution without an accompanying alteration to its text.

Heather Gerken offers a useful hydraulics metaphor to convey how informal constitutional

change occurs. When a constitution is difficult to reform, she suggests, the hydraulics theory

predicts that those impulses and energies for reform will be redirected elsewhere through channels

other than amendment.21 In other words, when the path to constitutional amendment is blocked,

the intensifying pressure for change will find alternative routes for relief, culminating either in an

irregular form of constitutional modification or in an altogether new constitution. These irregular

20
Rawls, note 1, at 239.
21
See Heather K Gerken, “The Hydraulics of Constitutional Reform: A Skeptical Response to Our Undemocratic
Constitution” (2007) 55 Drake Law Review 925 at 927.
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forms of constitutional change produce informal constitutional changes that occur outside of the

formal procedures of constitutional change. There are several methods of informal constitutional

change,22 though some common ones include judicial interpretation,23 executive action,24

legislation,25 political practice,26 treaty-making,27 and successful resistance to supreme law.28

Scholars may disagree on the normative desirability of these methods of informal constitutional

change, but they recognize that constitutional meaning does indeed change in these ways.29

A. Time and Tradition

Rawls suggests an additional way a constitution may change informally. I describe it here

as informal constitutional change by time and tradition. Rawls observes that repealing the First

Amendment and replacing it “with its opposite fundamentally contradicts the constitutional

tradition of the oldest democratic regime in the world.”30 As result, he writes, the First Amendment

has become “entrenched in the sense of being validated by long historical practice.”31 For Rawls,

22
Reijer Passchier, Informal Constitutional Change: Constitutional Change Without Formal Amendment in
Comparative Perspective (Leiden University, 2017); Richard Albert, “Constitutional Disuse or Desuetude” (2014) 94
Boston University Law Review 1029 at 1060-79.
23
See Edward Schneier, Crafting Constitutional Democracies (Rowman & Littlefield Publishers, 2006) at 225-26.
24
See Stephen M. Griffin, Long Wars and the Constitution (Harvard University Press, 2013) at 30.
25
See William Eskridge, Jr. & John Ferejohn, “Superstatutes” (2011) 50 Duke Law Journal 1215 at 1230-31.
26
See Michael J. Gerhardt, The Power of Precedent (Oxford University Press, 2008) at 111.
27
See Reijer Passchier, “Quasi-Constitutional Change Without Intent” (2017) 65 Buffalo Law Review 1077 at 1090-
91.
28
See David L. Sloss, The Death of Treaty Supremacy: An Invisible Constitutional Change (Oxford University Press,
2016) at ch. 15. Other forms of informal amendment include implication, see Selden Bacon, “How the Tenth
Amendment Affected the Fifth Article of the Constitution” (1930) 16 Virginia Law Review 771 at 782, atrophy, see
Adrian Vermeule, “The Atrophy of Constitutional Powers” (2012) 32 Oxford Journal of Legal Studies 421 at 424-25,
and desuetude, see Richard Albert, “Constitutional Amendment by Constitutional Desuetude” (2014) 62 American
Journal of Comparative Law 641 at 643-44.
29
See Bruce Ackerman, We the People—Volume II: Transformations (Harvard University Press, 1998) at 15-26;
Jeremy Webber, Reimaging Canada: Language, Culture, Community, and the Canadian Constitution (McGill-
Queen’s University Press, 1994) at 260-305; Tom Ginsburg & Eric A. Posner, “Subconstitutionalism” (2010) 62
Stanford Law Review 1583 at 1600; Charlie Jeffery, “Dimensions of Constitutional Change: Germany and the United
Kingdom Compared” in Arthur B. Gunlicks ed., German Public Policy and Federalism (Berghahn Book, 2003) 197
at 203; Sanford Levinson, “Designing an Amendment Process” in John Ferejohn et al., eds., Constitutional Culture
and Democratic Rule (Cambridge University Press, 2001) 271 at 274.
30
Ibid.
31
Ibid. at 238.
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the entrenchment of the First Amendment through time and tradition entails two consequences.

The first is that only minor reforms to the First Amendment are permissible. It may be amended

only for three limited purposes: to keep up with “changing political and social circumstances,”32

“to incorporate into the constitution a broader and more inclusive understanding of those values,”33

or “to remove weaknesses that come to light in subsequent constitutional practice.”34 For Rawls,

the second consequence of the First Amendment’s entrenchment through time and tradition is that

major reforms to it are legally and legitimately prohibited: “the successful practice of its ideas and

principles over two centuries place restrictions on what can now count as an amendment, whatever

was true at the beginning.”35 The First Amendment may not be “simply repealed and reversed,”36

he asserts. Rawls therefore argues that the long endurance of the First Amendment has given rise

to an unwritten rule that Article V cannot be used to eliminate it. Time and tradition, according to

Rawls, have transformed the First Amendment into an unamendable part of the U.S. Constitution.

Whether Rawls is correct depends on the nature of his claim: is it descriptive or normative?

If the former, it is incorrect to assert descriptively that the First Amendment cannot be “simply

repealed and reversed.”37 Neither the U.S. Constitution, nor Supreme Court case law, nor even

constitutional practice supports his descriptive claim that the First Amendment is unamendable.

Begin with the text of the U.S. Constitution. It authorizes all manner of reforms, with no

rule immune either to revision or repeal. Article V, which codifies multiple procedures for

constitutional reform, makes clear that all reforms are permissible today.38 There was a time,

32
Ibid.
33
Ibid.
34
Ibid. at 239.
35
Ibid.
36
Ibid.
37
Ibid.
38
U.S. Constitution, art. V.
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however, when certain reforms were impermissible, but those rules have since expired. The

original text of the Constitution made two rules unamendable under law. These two rules were

written shrewdly to hide their purpose in plain sight within the technical details of Article V:

Congress and the states may amend the Constitution however they wish “provided that no

Amendment which may be made prior to the Year One thousand eight hundred and eight shall in

any Manner affect the first and fourth Clauses in the Ninth Section of the first Article.”39 Most

readers quickly skim this dense and circuitous language, assuming that it involves still more of the

mechanistic details of the majorities and procedures required to amend the text. But a careful

reading reveals precisely what was at stake—and exposes what the framers saw as a central

preoccupation that could foil their plans to give America a new constitution. Both rules involve

America’s practice of slavery. And neither could be amended until the year 1808. Now, since the

expiration of those rules long ago, nothing in the U.S. Constitution is formally unamendable.40

The U.S. Supreme Court has confirmed in its case law that there are no substantive

limitations on constitutional reform. For the Court, the text of Article V is the sole source of

authority on the legality of constitutional amendments. As long as an amendment is deemed to

have adhered to the procedural strictures specified in Article V, it is valid and binding. The Court

stressed this point in challenges to the Eighteenth and Nineteenth Amendments, each of which in

its own day survived claims of unconstitutionality. The Court upheld the Eighteenth Amendment,

which imposed prohibition,41 against constitutional claims that it intruded onto state police powers

39
Ibid. at art. V.
40
The Equal Suffrage Clause, giving each state two senators, is not formally unamendable: a state may be denied of
its equal suffrage in the Senate if it consents to this reform. Of course, no state is ever likely to consent to such a
change. It is constructively unamendable, but theoretically freely amendable. See Richard Albert, “Constructive
Unamendability in Canada and the United States” (2014) 67 Supreme Court Law Review (2d) 181 at 184.
41
U.S. Constitution, amend. XVIII.
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and impermissibly allowed the federal government to interfere with private lives.42 A similar

outcome followed when the Court was asked to judge the constitutionality of the Nineteenth

Amendment,43 which protects women’s right to vote.44 Maryland had refused to ratify the

amendment on federalism grounds and also because its own state constitution allowed only men

to vote.45 At the Court, a central argument was that the Nineteenth Amendment was of such a

character that it exceeded the amending power in Article V.46 The Court was asked to rule that the

result of the amendment, “so great an addition to the electorate, if made without the state’s consent,

destroys [the state’s] autonomy as a political body.”47 Referring to the earlier Fifteenth

Amendment, which extended the franchise to all irrespective of race, the Court declared that “this

amendment is in character and phraseology precisely similar to the Fifteenth. For each the same

method of adoption was pursued. One cannot be valid and the other invalid.”48 In these two cases,

the Court rejected the Rawlsian interpretation of unwritten limits on constitutional amendment.

Under current law, then, the hypothetical Twenty-Eighth Amendment would be valid, as

neither the constitutional text nor the Supreme Court recognizes restrictions on the content of an

Article V amendment. But there remains one possibility for rescuing Rawls’ argument that there

are real constraints on Article V: perhaps amending actors themselves—Congress and the states—

have developed through their dialogic constitutional practices a norm or expectation that certain

amendments will be invalid if they violate an unwritten limitation in the Constitution. Could this

be a credible source of substantive Rawlsian limitations on amendments to the U.S. Constitution?

42
National Prohibition Cases, 253 U.S. 350 (1920).
43
Leser v. Garnett, 258 U.S. 130 (1922).
44
Constitution of the United States, amend. XIX.
45
Leser, supra note 43, at 135.
46
Ibid. at 136.
47
Ibid.
48
Ibid.
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The answer here is also no. Historical amendment activity in the United States reveals a

fatal blow to the descriptive Rawlsian claim that the First Amendment’s prohibition against

establishing a national religion is unamendable: constitutional amendment practice permits the

very amendment that Rawls argues is inadmissible. Since 1947, congresspersons have introduced

over 55 proposals to amend the Constitution to establish Christianity as the official religion.49

Indeed, the history of amendment activity in the United States confirms that amending actors feel

unconstrained by any expectation or norm that narrows the scope of their power to amend the

Constitution without restriction. In 1861, for example, Representative Thomas Corwin proposed

an amendment simultaneously authorizing slavery for as long as a state wishes and denying

congressional authority to “abolish or interfere” with this right of states.50 Congress approved the

proposal, President James Buchanan supported it, and states began ratifying it before the Civil War

interrupted the march to enactment.51 Amending actors have since introduced amendment

proposals that confirm there is no constitutional practice of implicit substantive limits on reform.

There have been proposals, for instance, to repeal the Fourteenth Amendment,52 to overturn the

centuries old Second Amendment,53 and to ban marriage between persons of different races.54

B. Identifying and Enforcing Unwritten Constitutional Norms

Although the descriptive claim made by Rawls is incorrect, it nonetheless raises a valuable

question worth asking about constitutions more generally: is it possible for a constitutional rule to

become informally unamendable as a result of its long endurance over time and its importance to

49
See John R. Vile, Encyclopedia of Constitutional Amendments, Proposed Amendments, and Amending Issues, 1789-
2002 (Bloomsbury, 2003) at 64-65.
50
H.R. Res. 80, 36th Cong., 12 Stat. 251 (1861).
51
Stephen Kantrowitz, The Other Thirteenth Amendment: Free African Americans and the Constitution that Wasn’t
(2010) 93 Marquette Law Review 1367 at 1370-73.
52
H.R.J. Res. 342, 93rd Cong. (1973).
53
H.R.J. Res. 438, 102d Cong. (1992).
54
H.R.J. Res. 54, 42nd Cong. (1871).
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the polity? Comparative experience suggests the answer may be yes. Absent a formal reform, the

vehicle that may transform a rule from amendable to unamendable is a constitutional convention.

The term “constitutional convention” has different meanings in the political context. It could of

course refer to an extraordinary assembly of persons gathered to make or remake a constitution.55

But I use the term here in the traditional British sense of an unwritten constitutional norm.56

A constitutional convention develops, as Ivor Jennings has explained, where there is at

least one precedent, political actors feel themselves bound to follow it, and there is a reason to

respect it.57 The key to understanding a constitutional convention is that its existence turns on what

political actors think, feel, and eventually do. A convention may be said to exist only where it is

perceived as more than “mere practice.”58 Self-perception is critical to the formation of a

convention: Political actors must feel an obligation to conform their conduct to that practice

because they “believe that they ought to do so.”59 The practice must also have a normative value

to elevate it to the level of a convention: it must “enable[] the machinery of State to run more

smoothly” and it must be “desirable in the circumstances of the constitution.”60 The essential point

is that constitutional conventions are knowable by the conduct of political actors: we can answer

the question whether or not conventions exist because they “ultimately reflect what people do.”61

In theory, then, a constitutional convention could indeed transform a rule that is freely

amendable under the law of the constitution into one that is implicitly unamendable. This

55
See John Alexander Jameson, The Constitutional Convention: Its History, Power, and Modes of Proceeding
(Charles Scribner and Company, 1867).
56
See A.V. Dicey, Introduction to the Study of the Law of the Constitution (Liberty Fund 8th ed. 1982) (1885).
57
Ivor Jennings, The Law and the Constitution (University of London Press, 5th ed. 1967) at 136.
58
Ibid. at 134.
59
Ibid. at 135.
60
Ibid. at 136.
61
Geoffrey Marshall, Constitutional Conventions: The Rules and Forms of Political Accountability (Oxford
University Press, 1984) at 217.
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transformation from amendable to unamendable would turn on three factors: (1) a precedent for

political actors resisting an effort to amend the legally amendable rule, perhaps because they

perceive the legally amendable rule to hold a special place, and to exercise a fundamental role, in

the constitutional order; (2) an obligation felt by future political actors to abide by the precedent

set by their predecessors to refrain from reforming the legally amendable rule; and (3) a

normatively grounded justification for their decision not to amend the legally amendable rule.

There is no evidence that any such unwritten constitutional norm has ever developed in the

United States against amending the First Amendment. On the contrary, the dozens of efforts since

1947 to repeal the non-establishment rule in the First Amendment prove precisely the contrary:

that no constitutional convention has developed to shield the First Amendment from revision or

replacement.62 Among these efforts to amend the First Amendment, one of the most prominent is

known as the Flanders Amendment, named after Senator Ralph Flanders. It proposed to amend the

Constitution to declare that “this nation devoutly recognizes the authority and law of Jesus Christ,

Savior and Ruler or nations, through whom are bestowed the blessings of almighty God.”63 That

a Senator would propose this reform amounts to compelling authority to undermine the claim that

a constitutional convention has emerged to shield the First Amendment from any or all of the three

forms of formal constitutional change, whether amendment, dismemberment, or replacement.

Yet there is a Canadian example of a constitutional convention emerging to transform a

legally amendable rule into an implicitly unamendable one. The unilateral provincial power of

amendment in the Constitution of Canada has always been freely amendable, but over time and in

62
Vile, supra note 49.
63
See Mark Douglas McGarvie, Law and Religion in American History: Public Values and Private Conscience
(Cambridge University Press, 2016) at 141.
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the course of constitutional politics it has grown effectively unamendable.64 From the enactment

of the Canadian Constitution in 1867, through the many failed efforts at constitutionalizing

amendment rules, and culminating at last with the creation of a menu of amendment procedures in

1982, the unilateral provincial amendment power was never in doubt, even amid uncertainty about

the amendment structure Canada would eventually adopt. It had become non-negotiable, and

therefore implicitly unamendable due to a convention recognizing its fundamentality in Canada.

III. Restricting Constitutional Change

The interpretation Rawls advances in support of his hypothetical Twenty-Eighth

Amendment —that the First Amendment should be treated as unamendable—is not available today

in the United States. But it is thriving in countries abroad. Many (but not all) constitutions codify

rules prohibiting reforms to specifically enumerated constitutional principles and provisions. I call

this constitutional design codified unamendabilty. In addition, several national high courts adhere

to a doctrine of unconstitutional amendment that elevates certain constitutional rules from legally

amendable to unamendable. I refer to this phenomenon as interpretive unamendability.

A. Constitutional Design

The trendline beyond the United States is clear: codified unamendability is increasingly

common. From 1789 to 1944, no more than 20 percent of all new constitutions codified some form

of unamendability, as compared to 25 percent between 1945 and 1988, and to now over 50 percent

since 1989.65 There are many kinds of codified unamendability, some more prevalent than others.66

Some codified forms of unamendability are cast at a low level of specificity: for instance, in France

64
See Richard Albert, “Amending Constitutional Amendment Rules” (2015) 13 International Journal of
Constitutional Law 655 at 672-74.
65
Yaniv Roznai, Unconstitutional Constitutional Amendments: The Limits of Amendment Powers (Oxford University
Press, 2017) at 20-21.
66
Richard Albert & Bertil Emrah Oder, “The Forms of Unamendability” in Richard Albert & Bertil Emrah Oder
(eds.), An Unamendable Constitution? Unamendability in Constitutional Democracies (Springer 2018) at 1.
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the “republican” nature of the state is unamendable,67 while the “democratic” characteristics of the

state are unamendable in the Czech Republic.68 Other codified forms of unamendability are

entrenched at a much higher level of specificity: for example, the Turkish Constitution makes the

national flag unamendable.69 There is truly no limit to what framers may codify as unamendable.70

I have long resisted unamendability as a constitutional design.71 It limits the choices of a

constitutional community and it divests citizens of their most fundamental democratic right: to

amend their constitution to reflect their present views and values.72 A better constitutional design

than codified unamendability—and one that achieves the most important objectives of codified

unamendability, namely expressing the importance of certain rules and complicating reform in

certain cases—is an escalating structure of constitutional amendment that creates different

thresholds of constitutional reform for different parts, principles, and rules of the constitution.73

Nonetheless, drawing from the global experience of constitutional design, I have observed

seven different uses of codified unamendability. Some or all of these may be valuable, but in all

cases, in my view, their shortcomings exceed their benefits. First, constitutional designers codify

unamendable rules in order to preserve a feature of the state. Preservational unamendability seeks

to protect something thought to be fundamentally constitutive of, or distinctive about, the state and

its peoples. For instance, the Afghan Constitution establishes Islam as the official religion of the

state, and makes this rule unamendable.74 Other states establish secularism as an unamendable

67
France Constitution, art. 89.
68
Czech Republic Constitution, art. 9.
69
Turkey Constitution, arts. 3, 4.
70
Richard Albert, “The State of the Art in Constitutional Amendment” in Richard Albert, Xenophon Contiades &
Alkmene Fotiadou, The Foundations and Traditions of Constitutional Amendment (Hart 2017) at 7.
71
See Richard Albert, “Constitutional Handcuffs” (2009) 42 Arizona State Law Journal 663.
72
See Albert, supra note 19, at 194-202.
73
See Richard Albert, “The Expressive Function of Constitutional Amendment Rules” (2013) 59 McGill Law Journal
225 at 247-56.
74
Afghanistan Constitution, art. 149.
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rule, namely Benin, for example.75 In contrast to preservation, codified unamendability may have

transformation as its objective—to repudiate the past and to chart a new beginning. For instance,

the Constitution of Bosnia and Herzegovina creates an unamendable floor for all civil and political

rights.76 This codified unamendable rule was a response to the prior transgressions of rights.

Transformational unamendability is generally chosen as a way to send a message: “never again.”

Codified unamendability is also used for a third purpose: to reconcile opposing groups.

The objective of reconciliatory unamendability is to make peace possible between enemies by

conferring irrevocable amnesty for prior conduct. Niger illustrates this well. Following coups in

1996 and 1999, a new constitution conferred blanket amnesty on those involved, specifying that

the amnesty could never be the subject of an amendment.77 A fourth purpose of unamendability is

reassurance. When a contentious subject divides parties and threatens to derail the constitution-

making process, one option is to take the subject off the table by deferring its resolution to a later

date.78 This form of reassurance unamendability is codified in the U.S. Constitution. The 1787

Philadelphia Convention could not resolve the matter of enslavement; it therefore resolved to make

the status quo unamendable until the year 1808.79 Starting that year, slavery could be reconsidered.

The three other purposes of codified unamendability are crisis management, settlement,

and value-expression. Crisis management unamendability disables the amendment process during

periods of national stress or uncertainty, for instance during an emergency, war, succession, or

regency.80 To illustrate, Montenegro prohibits amendments in a state of siege, and Luxembourg

75
Benin Constitution, art. 156.
76
Bosnia and Herzegovina Constitution, art. X, s. 2.
77
Nigeria Constitution, arts. 136, 141
78
See Rosalind Dixon & Tom Ginsburg, “Deciding Not to Decide: Deferral in Constitutional Design” (2011) 9
International Journal of Constitutional Law 636 at 644.
79
U.S. Constitution, art. V.
80
Montenegro Constitution, art. 156.
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does not permit amendments when the monarch has died and a transition is underway.81 Settlement

unamendability seeks to create time for a constitutional settlement to take hold in the aftermath of

a particularly charged moment in the life of the state. For instance, Cape Verde does not allow

amendments within a certain number of years after the ratification of the Constitution.82 In

Portugal, amendments are prohibited within a defined duration after a successful amendment.83 In

both cases, the prohibition on amendment is intended to create a period of constitutional peace.

The seventh purpose of unamendability is both the most obvious and the most effective: to express

constitutional values. When constitutional designers choose to distinguish a certain rule from

others by making it unamendable, they signal to the jurisdiction and the world that this rule is

important. Codified unamendability can therefore be a strong statement of significance. For

instance, Cuba expresses the importance of socialism by making it an unamendable commitment.84

B. Constitutional Interpretation

Just as codified unamendability does not exist today in the U.S. Constitution, nor does a

doctrine of unconstitutional amendment that treats certain rules as implicitly unamendable. The

former establishes an unamendable rule by constitutional design whereas the latter creates a

doctrinal rule of unamendability through constitutional interpretation by the authoritative arbiter

of constitutional meaning, usually a court. The best place to learn about this doctrine is India.

The Indian Constitution does not codify any unamendable rules yet some of its rules are

treated as unamendable. How can this be? The Court has interpreted the Constitution as consisting

of certain rules that are implicitly immune to all reform. They are to remain in the Constitution for

81
Constitution of Luxembourg, art. 115.
82
Cape Verde Constitution, art. 309(1).
83
Portugal Constitution, art. 284(1).
84
Cuba Constitution, s. 3.
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as long as the Constitution endures. The Court has a name for this: the basic structure doctrine.

When the Court applies the basic structure doctrine—which holds that certain rules are implicitly

unamendable—the consequence can be to invalidate procedurally-perfect constitutional reforms.

The Court laid the foundation for invalidating an amendment when it held that the

amendment power could not be used to abolish or violate fundamental constitutional rights.85

Surely sensing that actually invalidating a constitutional amendment could be too bold a move too

soon, the Court held that its controversial holding would apply only prospectively, not

retrospectively, and that only henceforth would the national legislature’s textually plenary (but in

reality limited) power of amendment be subject to judicial review for consistency with the

constitution. This case was a prelude to unveiling the basic structure doctrine a few years later.

When the time finally came, the Court held that the amendment power could be used only

as long as it did not do violence to the constitution’s basic structure.86 The concept of the basic

structure was said to include the supremacy of the constitution, the republican and democratic

forms of government, the secular character of the state, the separation of powers and federalism.87

In asserting these elements of the basic structure doctrine—elements that the Court insisted could

not lawfully be violated by a constitutional amendment—the Chief Justice wrote that “every

provision of the Constitution can be amended provided in the result the basic foundation and

structure of the Constitution remains the same.”88 The Chief Justice identified these basic features

of the constitution with reference to the preamble and the “whole scheme of the Constitution.”89

But it is important to note that the constitution’s text did not then, nor does it now, enumerate what

85
Golak Nath v. State of Punjab, 1967 AIR 1643, 1967 SCR (2) 762.
86
Kesavananda Bharati Sripadagalvaru v. Kerala, 1973 SCC (4) 225.
87
Ibid. at para. 316.
88
Ibid.
89
Ibid. at para. 318.
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is “basic,” as in foundational, to its own structure. That judgment of constitutional immunity from

amendment finds its origin in judicial interpretation, not in explicit constitutional design.

Roughly a decade later, the Court invoked the basic structure doctrine to invalidate

amendments to India’s codified amendment rules.90 The amendments proposed to limit the Court’s

power to review constitutional amendments. The amendments declared that “no amendment of

this Constitution … shall be called in question in any court on any ground”91 and that “for the

removal of doubts, it is hereby declared that there shall be no limitation whatever on the constituent

power of Parliament to amend by way of addition, variation or repeal the provisions of this

Constitution under this article.”92 The Court explained why it saw fit to invalidate the reform:

Since the Constitution had conferred a limited amending power on the Parliament,

the Parliament cannot under the exercise of that limited power enlarge that very

power into an absolute power. Indeed, a limited amending power is one of the basic

features of our Constitution and therefore, the limitations on that power cannot be

destroyed. In other words, Parliament cannot, under Article 368, expand its

amending power so as to acquire for itself the right to repeal or abrogate the

Constitution or to destroy its basic and essential features. The donee of a limited

power cannot by the exercise of that power convert the limited power into an

unlimited one.93

90
Minerva Mills Ltd. v. Union of India, 1980 AIR 1789, 1981 SCR (1) 206, SCC (2) 591.
91
Constitution (Forty-second Amendment) Act, 1976, s. 55.
92
Ibid.
93
Ibid.
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This cornerstone of the basic structure doctrine has since migrated beyond India to many other

countries since its articulation half a century ago. The best exposition of the doctrine—including

its development, migration, and justification—appears in Yaniv Roznai’s magisterial book.94

Although the basic structure doctrine and its analogues have been adopted in many

countries, it has also been rejected by several countries beyond the United States, including France,

Ireland, and Mexico. It is therefore critical to note that the basic structure doctrine has not achieved

universality, nor has it yet come close.95 There are many good reasons why. The foundation for

most of these convincing justifications for rejecting the basic structure doctrine is that it is

anchored in the fusion of two roles that have traditionally—and properly, as well as prudently—

been separated across time and institutions: constitutional author and constitutional interpreter.

Conclusion—A Springboard to the World

Rawls asks readers whether it would be a valid use of Article V to repeal the First

Amendment and in turn to establish an official religion. He argues that this amendment would be

“invalid” because time and tradition have made the First Amendment implicitly unamendable. I

have explained in this chapter that Rawls misunderstands the design of Article V, the effect of

endurance on a constitutional rule, and the judicial interpretation of amendments in the United

94
See Roznai, supra note 65. Other useful works on the doctrine include Rehan Abeyratne & Ngoc Son Bui (eds.),
The Law and Politics of Unconstitutional Constitutional Amendments in Asia (Routledge, 2021); Richard Albert,
“How a Court Becomes Supreme” (2017) 77 Maryland Law Review 181; Aharon Barak, “Unconstitutional
Constitutional Amendments” (2011) 44 Israel Law Review 321; Carlos Bernal, “Unconstitutional Constitutional
Amendment in the Case Study of Colombia: An Analysis of the Justification and Meaning of the Constitutional
Replacement Doctrine” (2013) 11 International Journal of Constitutional Law 339; Rosalind Dixon and David
Landau, “Transnational Constitutionalism and a Limited Doctrine of Unconstitutional Constitutional Amendment”
(2015) 15 International Journal of Constitutional Law 833; C.M. Fombad, “Limits on the Powers to Amend
Constitutions: Recent Trends in Africa and their Impact on Constitutionalism” (2007) 6 Botswana Law Journal 27;
Jaclyn Neo, “A Contextual Approach to Unconstitutional Constitutional Amendments: Judicial Power and the Basic
Structure Doctrine in Malaysia” (2020) 15 Asian Journal of Comparative Law 69; Reijer Passchier and Maarten
Stremler, “Unconstitutional Constitutional Amendments in European Union Law: Considering the Existence of
Substantive Constraints on Treaty Revision” (2016) Cambridge International Law Journal 337.
95
See Richard Albert, Malkhaz Nakashidze & Tarik Olcay, “The Formalist Resistance to Unconstitutional
Constitutional Amendments” (2019) 70 Hastings Law Journal 636.
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States. Neither the Constitution, nor Supreme Court case law, nor constitutional practice supports

Rawls’ descriptive claim that the First Amendment’s establishment prohibition is unamendable.

I have used Rawls’ hypothetical Twenty-Eighth Amendment as a springboard to examine

the various forms of constitutional change in the global practice of constitutionalism. I have

distinguished the formal methods of constitutional change—amendment, dismemberment, and

replacement—and explained why and how to differentiate among them in terms of their scope. I

have moreover identified various methods of informal constitutional change—including judicial

interpretation, executive action, legislation, political practice, treaty-making, successful resistance

to supreme law, and constitutional conventions—and suggested that these methods of change

resemble formal reforms in their function though of course not in their form. Finally, I have shown

that constitutional design and constitutional interpretation can become vehicles to restrict the scope

and content of formal constitutional change, though I have expressed hesitation about both of these

controversial yet common forms of unamendability in the constitutions of the world.

Rawls may be wrong about constitutional amendment, but his provocative hypothetical

inquiry prompts questions both substantive and procedural that push the boundaries of our current

knowledge of how constitutions change. It is therefore a valuable exercise to ponder his question

whether the Twenty-Eighth Amendment would be a valid use of Article V because it opens a

window into a better understanding of constitutional change in the United States and beyond.

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RICHARD ALBERT 24