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Rosalind Dixon & David Landau, Transnational Constitutionalism and a Limited Doctrine of Unconstitutional Constitutional Amendment, 13 Int’l J. Const. L. 606 (2015).

Rosalind Dixon and David Landau’s Transnational Constitutionalism and a Limited Doctrine of Unconstitutional Constitutional Amendment contributes significantly to at least two fields of legal scholarship: the writing on unconstitutional amendments and the literature on comparative constitutional law. In what follows, I will highlight how this most impressive text contributes to each of these fields.

Consider first the article’s contribution to the writing on the doctrine of unconstitutional amendments. As the authors’ exhaustive citations reveal, scholars have long examined how courts should determine whether “some constitutional amendments are substantively unconstitutional because they undermine core principles in the existing constitutional order.” (P. 608.) Dixon and Landau state with striking clarity the stakes that underlie this debate. They note that the doctrine creates a slippery slope problem: judicial oversight can create a brake on attempts to enshrine in a constitution measures that unambiguously undermine its democratic legitimacy, yet there is a risk that courts will extend the doctrine to cases in which there is only reasonable disagreement about a particular interpretation of the constitution and therefore no serious threat to the polity’s democratic order. When a court overreaches in this way, the authors note, it frustrates the political branches’ ability to pursue a constitutionally recognized avenue for resolving a reasonable disagreement with the judiciary. Dixon and Landau describe the consequences of such judicial overreaching: “Giving courts unfettered power to invalidate amendments for incompatibility with their own prior preferred reading of the constitution will create a clear democratic danger or cost.” (Id.)

An academic article can add much to a debate by clearly framing a problem in the way that Dixon and Landau have done, but they go further than this. They prescribe a novel and compelling solution that should influence how academics and courts view the problem of unconstitutional amendments. And in the course of developing this solution, they advance an ongoing discussion about how courts should engage in comparative constitutional law. Consider first their proposal.

After illustrating the slippery slope problem with close analyses of case studies drawn from the Indian and Columbian experiences, the authors survey judicial attempts to address it. One set of solutions seeks to narrow the doctrine by applying it to a limited set of institutional provisions or a closed set of fundamental principles. (P. 624.) This solution is flawed, Dixon and Landau note, because it does not respond to situations in which a government can make changes that, considered individually, would not significantly affect a polity’s fundamental democratic character, but in the aggregate likely would. (P. 625.) A second set of solutions supplements the narrowness approach with “a potential adverse impact standard.” (P. 626.) According to this standard, any amendment that threatened a constitutional order’s democratic foundations would be invalidated. Yet this solution fails because of its evident problems of overbreadth. (P. 627.) Instead of resolving the slippery slope problem, this proposal reproduces it.

Dixon and Landau’s doctrinal prescription is ingenious and avoids the shortcomings of the alternatives. They argue for a “broad but weak standard.” (P. 627.) The standard is broad, in that it is not limited ex ante and therefore would enable a court to identify the diverse ways in which a constitutional amendment can threaten core democratic values. The standard is weak, in that it would apply only when a constitutional amendment would threaten to have a “substantial adverse impact” on such values. A court seeking to apply such a standard faces difficulties at two stages: “(1) the identification of which principles and values must be protected against substantial adverse impact and (2) the determination of whether a given constitutional amendment actually has such a substantial impact.” (P. 629.) Dixon and Landau recommend that courts consider the practices and case law of other jurisdictions when they embark on these stages of analysis. The authors survey an impressive array of examples in order to illustrate how such analyses could be undertaken.

The ingenuity and novelty of Dixon and Landau’s proposal advances significantly the literature on unconstitutional amendments, while the methodology underlying the proposal represents an important contribution to the broader field of comparative constitutional law. In their examination of the different forms that the doctrine of unconstitutional amendment can take, the authors adopt what I would characterize as a decision-rules approach to comparative constitutional law, which focuses on the kinds of rules that courts use when interpreting and applying a constitution, and examines the considerations that go into selecting a specific rule. Constitutional scholars who have applied this approach in the domestic context include Kermit Roosevelt III (The Myth of Judicial Activism (2006)) and Richard H. Fallon Jr. (Implementing the Constitution (2001)). Echoes of this approach can be heard in Dixon and Landau’s discussion of standards and rules (P. 623), and in the assessments of the costs and benefits of the different constitutional standards that we surveyed above.

In adopting a decision-rules approach, the authors respond to one version of the problem of incommensurability in comparative constitutional law. The problem can be stated in practical terms: because of social, economic, political, and historical differences among constitutional orders, it is folly to compare them and reckless to prescribe solutions that would purport to apply across orders. A decision-rules approach to comparative constitutional law addresses this problem directly. It examines the costs and benefits of courts’ adopting a particular form of constitutional rule and then tests the analysis against specific contexts. Dixon and Landau offer a particularly rigorous demonstration of how this can be achieved. Moreover, they pose an implicit challenge to those who are generally skeptical of prescriptions that are offered across constitutional jurisdictions. The authors challenge those who would disagree with their proposal to demonstrate, with specific examples, why a broad but weak standard does not adequately respond to the risks they identify with the doctrine of unconstitutional amendments. Such a challenge concretizes the debate about the desirability of comparative constitutional prescriptions and removes it from the realm of abstract concerns about incommensurability.

I close this review with Dixon and Landau’s second major contribution to comparative constitutional law, which responds to a second version of the problem of incommensurability. Critics of constitutional borrowing sometimes argue that it is democratically illegitimate. According to this criticism (which was enunciated perhaps most forcefully by Justice Scalia), when a court incorporates into its decisions the constitutional norms of foreign jurisdictions, it undermines the sovereignty of its constitutional polity. This is so, the critics claim, because constitutional norms are indissociably tied to the beliefs and values of a given polity and courts therefore usurp the will of the political community when they engage in constitutional borrowing.

Dixon and Landau’s approach to applying their broad but weak standard responds to this criticism. Recall that they propose that courts look to comparative constitutional sources and experiences in order to reflect upon the values and institutions of their own polity. In this approach, the utility of the foreign materials must therefore be assessed by appeal to reasons that are convincing within a court’s own constitutional order. In other words, the materials would aid a court’s reflections only if they could explicitly be engaged on terms that are considered to be legitimate within the court’s polity. As a consequence, a court applying Dixon and Landau’s approach would seem to affirm its polity’s constitutional values and contribute to an ongoing discussion about them.

The approach’s promise is revealed when the authors examine a hypothetical assessment of some of Germany’s “institutions of militant democracy” (P. 634), including political party-banning. Dixon and Landau argue that although a German judge may find no consensus among constitutional democracies about the significance of such an institution, she may find it to be of fundamental importance to the German constitutional order. The authors note: “Transnational engagement will nonetheless act as a second look, forcing constitutional judges to articulate compelling reasons why a value or institution is fundamental, despite not being seen as essential elsewhere.” (Id.) It is difficult to see how this kind of recourse to comparative constitutional materials would amount to an act of judicial usurpation.

As we have seen, Dixon and Landau’s article clarifies debates around, and offers a novel proposal in respect of, the doctrine of unconstitutional amendments. It also tackles long-standing concerns about incommensurability in the comparative constitutional law literature. An article that did any one of these things would be an important contribution. The fact that Dixon and Landau do all of them marks their text as most worthy of sustained and careful attention.

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Cite as: Hoi Kong, Understanding Unconstitutional Amendments: Reflections on Comparative Constitutional Doctrine and Method, JOTWELL (August 18, 2016) (reviewing Rosalind Dixon & David Landau, Transnational Constitutionalism and a Limited Doctrine of Unconstitutional Constitutional Amendment, 13 Int’l J. Const. L. 606 (2015)),