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Why do Formal Amendments Fail?: An Institutional Design Analysis

Published online by Cambridge University Press:  13 June 2011

Christopher P. Manfredi  and
Michael Lusztig
Michael Lusztig
Affiliation:
McGill University Southern Methodist University
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Abstract

Given the increasing importance of constitutional modification in Eastern Europe, Latin America, South Africa, Europe, and Australia, it is imperative to study systemically the conditions under which formal constitutional amendments are likely to fail. In this paper, the authors isolate conditions whereby the instrumental objectives of participants in the politics of constitutional modification threaten to overload the institutional capacity of the amending process. The proximate cause of amendment process overload is indeterminacy regarding the redistributive impact of the proposed change. Redistributive indeterminacy is a function of a rigid amending process, an institutional structure that encourages a large number of constitutional players and amendments which provide broad scope for judicial interpretation. The authors isolate two critical factors: the intensity of mass and elite preferences surrounding constitutional proposals and die structure of the amending process itself. They next trace mese factors back to institutional variables to create a model to explain and predict constitutional failure in a range of contexts. Finally, they apply the model to highly visible recent constitutional failures in the United States and Canada.

Type
Research Article
Information
World Politics , Volume 50 , Issue 3 , April 1998 , pp. 377 - 400
Copyright
Copyright © Trustees of Princeton University 1998

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References

1 Holmes, and Sunstein, , “The Politics of Constitutional Revision in Eastern Europe,” in Levinson, Sanford, ed., Responding to Imperfection: The Theory and Practice of Constitutional Amendment (Princeton: Princeton University Press, 1995), 294–301Google Scholar.

2 The explanation we propose is the product of two independent research projects. Earlier versions of the model are found in Lusztig, Michael, “Constitutional Paralysis: Why Canadian Constitutional Initiatives Are Doomed to Fail,” Canadian Journal of Political Science 27 (December 1994CrossRefGoogle Scholar); and Manfredi, Christopher P., “Institutional Design and the Politics of Constitutional Modification: Understanding Amendment Failure in the United States and Canada,” Law & Society Review 31, no. 1 (1997CrossRefGoogle Scholar).

3 If we consider aspects such as judicial review and federalism, the scope of influence is even greater, encompassing, for example, Germany andJapan. See Henkin, Louis and Rosenthal, Albert J., eds., Constitutionalism and Rights: The Influence of the United States Constitution Abroad (New York: Columbia University Press, 1990Google Scholar). The U.S. influence has also been important for constitutional reform movements in Israel. See Jeffrey, Gary Jacobscftin, Apple of Gold: Constitutionalism in Israel and the United States (Princeton: Princeton University Press, 1993), 11Google Scholar. The U.S. influence on Canadian constitu-tionalism, especially recently, is also significant. See Manfredi, Christopher P., “The Judicialization of Politics: Rights and Public Policy in Canada and the United States,” in Banting, Keith, Hoberg, George, and Simeon, Richard, eds., Degrees of Freedom: Canada and the United States in a Changing Global Context (Montreal and Kingston: McGill-Queen's University Press, 1997Google Scholar).

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6 Examples of incremental reform would include most of the post-Reconstruction amendments to the U.S. Constitution (with the exception of the Seventeenth and Nineteenth), Canadian constitutional amendments dedicated to reconciling the retention of the representation-by-population principle with changing demographics and limited space within the House of Commons, and recent amendments allowing New Brunswick and Newfoundland to make important changes to the administration of education policy.

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8 It is possible to conceptualize comprehensive modification that does not take the form of formal, multilateral amendments. Important judicial decisions, such as Marbury v Madison (1803) and Brown v Board ofEducation (1954), are examples. However, beyond recognizing this caveat, we are not explicitly concerned with this type of comprehensive constitutional modification. For more on judicially mandated comprehensive reforms, see Walter F. Murphy, “Merlin's Memory: The Past and Future Imperfect of the Once and Future Polity,” in Levinson (fh. 1).

9 The Reconstruction Amendments to the U.S. Constitution, the reconstituting of post-1945 Germany, and the constitutional engineering currently under way in South Africa could be described as comprehensive constitutional modifications. Similarly, most of the constitutional reforms embodied in Canada's 1982 Constitution Act and the failed Meech Lake and Charlottetown Accords can be included in this category.

10 Lutz, , “Toward a Theory of Constitutional Amendment,” American Political Science Review 88 (June 1994), 363CrossRefGoogle Scholar. Of course, changing the means by which constitutions are amended affects amending process rigidity. Thus, in Canada, for example, amending process rigidity must be analyzed in the context of significant changes to the amending formula in 1982.

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13 Brodie, Ian, “The Market for Political Status,” Comparative Politics 28 (April 1996), 253CrossRefGoogle Scholar. See also Cairns, Alan C., “Constitutional Minoritarianism in Canada,” in Watts, Ronald L. and Brown, Douglas M., eds., Canada: The State ofthe Federation, 1990 (Kingston: Institute of Intergovernmentaltions, 1990), 73Google Scholar.

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15 Stephen M. Griffin, “Constitutionalism in the United States: From Theory to Politics,” in Levin-son (m. 1), 40.

16 Together, the Meech Lake and Charlottetown failures have arguably brought Canada to the brink of a constitutional and political crisis as serious as any that has faced a constitutional democracy since 1861. Indeed, on October 30,1995, Quebecers voted to remain within Canada by a vote of 50.56 percent to 49.44 percent.

17 Much scholarly ink has been spilled over explaining the failures of 1992 and 1987–90. See, for example, Richard Simeon, “Why Did the Meech Lake Accord Fail?” in Watts and Brown (fn. 13); 238–59; Breton, Raymond, Why Meech Failed: Lessonsfor Canadian Constitutionmaking (Toronto: C. D Howe Institute, 1992Google Scholar); McRoberts, Kenneth and Monahan, Patrick, eds., The Charlottetown Accord, the Referendum, and the Future of Canada (Toronto: University of Toronto Press, 1993Google Scholar); Cook, Curtis, ed., Constitutional Predicament: Canada after the Referendum of 1992 (Montreal: McGill-Queen's University Press, 1994Google Scholar); Lusztig (fn. 2).

Substantive explanations argue that the two accords attempted either too much or not enough; or that they constituted too much or not enough of a compromise. Procedural explanations assert that the negotiation process was either too closed (Meech Lake) or too open (Charlottetown). Finally, political explanations focus either on the persuasive skills of political elites or on mass rejection of elite opinion. Although each of these explanations undoubtedly contains a grain of truth, they suffer the defect of being issue oriented and context specific. Thus, while the failure of Meech Lake is attributed to a closed negotiation process that could not produce a true compromise, Charlottetown's failure is explained as the result of an unduly open process that produced an unprincipled compromise that political elites could not sell to a disenchanted public. Two entirely different explanations, in other words, are posited for similar breakdowns in the politics of constitutional modification.

18 In order to maintain consistency, we have used the 1982 amending formulas as the benchmark for comprehensive constitutional change in Canada. Thus, we consider any amendment that would have required either the unanimity or general (two-thirds of the provinces, which together have at least one-half of the population of all the provinces combined) amending formula as indicators of comprehensive reform. By this definition, comprehensive reforms through 1982 were the Manitoba Act (1870); Constitution Act (1871); British Columbia Terms of Union (1871); Prince Edward Island Terms of Union (1873); Statute Law Revision Act (1893); Alberta Act, Saskatchewan Act (1905); Ontario Boundaries Extension Act, Quebec Boundaries Extension Act, Manitoba Boundaries Extension Act (1912); Constitution Act (1915); Constitution Act (1930); Constitution Act (1940); Newfoundland Act (1949); Constitution Act (1960); Constitution Act (1964); Constitution Act (No. 2) (1975);

19 See Andrew Heard, Canadian Constitutional Conventions: The Marriage of Law and Politics (Toronto: Oxford University Press, 1991). In 1981 the Supreme Court held that the “total constitution” of Canada consists of constitutional convention (historical practice) plus constitutional law (text and judicial interpretation). However, the Court also held that only constitutional law is enforceable by courts. See Reference re Resolution to Amend the Constitution [1981] 1 S.C.R. 753.

The degree of amendment flexibility in Canada is also apparent in comparison with the U.S. Constitution, which enacted fifteen constitutional amendments during its first 115 years of existence (1789–1904). However, these amendments included a ten-amendment package in 1791 and the three Reconstruction Amendments added between 1865 and 1870. Moreover, two of the amendments could be described as incremental (Eleventh, Twelfth). Consequently, one might argue that the U.S. Constitution experienced only two comprehensive amendments between 1789 and 1904.

20 See Russell, Peter, Knopff, Rainer, and Morton, F. L., Federalism and the Charter: Leading Constitutional Decisions (Ottawa: Carleton University Press, 1989Google Scholar).

21 Monahan, Patrick, Politics and the Constitution: The Charter, Federalism and the Supreme Court of Canada (Toronto: Carswell/Methuen, 1987), 221Google Scholar–44.

22 A-G. Canada v A.-G. Ontario (Unemployment Insurance Reference) (1937) A.C. 355.

23 Globe and Mail, May 4,1987.

24 Ibid., March 16,1983.

25 Asch, Michael, Home and Native Land: Aboriginal Rights and the Canadian Constitution (Toronto: Methuen, 1984), 28Google Scholar.

26 The Distinct Society Clause read, in part: “The Constitution of Canada shall be interpreted in a manner consistent with the recognition that Quebec constitutes within Canada a distinct society.”

27 Section 1 reads: “The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”

28 Mansbridge, , Why We Lost the ERA (Chicago: University of Chicago Press, 1986), 29Google Scholar.

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31 Lutz (fn. 10), 363–64.

32 Every state but Nebraska has a bicameral legislature. Congress could, ofcourse, specify ratification by state conventions, which might change the political dynamics somewhat. However, ratification by state legislatures has been the norm.

33 Lutz (fh. 10), 369. Indeed, the U.S. rate was 95 percent lower than the average rate.

34 The origin ofjudicial review in the United States is generally traced to Marbury v Madison, 5 U.S. (1 Cranch) 137 (1803). Nevertheless, there is some evidence that these origins date from United States v Yak Todd (unpublished, 1794). See Dionisopoulos, P. Allan and Peterson, Paul, “Rediscovering the American Origins of Judicial Review,” John Marshall Lain Review 18 (Fall 1984Google Scholar).

35 O'Brien, David M., Storm Center: The Supreme Court in American Politics, 2d ed. (New York: W.W.Norton, 1990), 60Google Scholar.

36 Yarborough, Tinsley E., “The Political World of Federal Judges as Managers,” Public Administration Review 45 (November 1985), 660CrossRefGoogle Scholar. Although the 1960s represents a significant increase in the Court's policy-making role, its involvement as an important actor in the policy-making process dates back at least to the end of the nineteenth century. See O'Brien (fh. 35), 245.

37 Mansbridge (fn. 28), 10.

38 O'Connor, Karen, Women's Organizations' Use of the Courts (Lexington, Mass.: Lexington 1980Google Scholar).

39 According to this standard of review, a classification may be upheld only if it is necessary to achieve a compelling state interest.

40 The rational basis test simply requires that statutory classifications be reasonable in view of their purpose. The intermediate level of review generally requires a “close fit” between a classification and an “important' (but not compelling) state interest.

41 Frontiero v Richardson, 411 U.S. 167 (1973).

42 Steiner (fn. 29), 63–66.

43 For more on the Australian system, see Brian Galligan, “The 1988 Referendum and Australia's Record on Constitutional Change,” ParliamentaryAffairs 43 (October 1990).

44 See Rydon, Joan, “Australian Constitutional Reform,” Round Table 308 (1988), 352Google Scholar.

45 See Arkes, Hadley, “Silence the Court,” National Review, March 20, 1995Google Scholar.

46 See Tate, C. Neal and Vallinder, Torbjorn, eds., Tie Global Expansion of Judicial Power (New York and London: New York University Press, 1995Google Scholar).