Constitutional Amendments: Making, Breaking, and Changing Constitutions, by Richard Albert, Oxford University Press, 2019
| Autor | Roberto Gargarella |
| Cargo | Doctor of Law from the University of Buenos Aires (uba) and Doctor of Jurisprudence from the University of Chicago. Correo de contacto: roberto.gargarella@gmail.com. orcid id: https://orcid.org/0000-0003-1579-5427. |
| Páginas | 371-389 |
ROBERTO GARGARELLA*
Constitutional Amendments:
Making, Breaking, and Changing
Constitutions, by Richard Albert,
Oxford University Press, 2019**
Constitutional Amendments and
Democracy: A View from Latin America
INTRODUCTION
In his pathbreaking book Constitutional Amendments: Making, Breaking, and
Changing Constitutions, Professor Richard Albert studies the “uncharted terrain”
of amendment rules. He maps the “intellectual topography of constitutional
amendment rules” and, at the same time, tries to answer “the many questions
about amendment that have until now remained unanswered”1. In particular,
Professor Albert “devote(s) much of the book to a question for which there
are surprisingly few comprehensive answers in the scholarly literature: how
should be design the rules of constitutional amendments”2.
The outcome is an elegant, comprehensive and profound study, which draws
from “comparative, doctrinal, historical, and theoretical perspectives”3. The
author presents a clear and easy-to-read study, which he illustrates through
examples of pressing importance that help us understand the enormous rel-
evance of the book’s main theme. Clearly, Albert’s work represents the most
complete and up-to-date guide for the study of constitutional amendments.
Before proceeding to an examination of the book, let me clarify three points
about the review that follows. In the first place, I am not going to carry out
an exhaustive analysis of Constitutional Amendments, but rather focus on a
* Doctor of Law from the University of Buenos Aires (UBA) and Doctor of Jurisprudence
from the University of Chicago. Correo de contacto: roberto.gargarella@gmail.com. ORCID ID:
https://orcid.org/0000-0003-1579-5427.
** Recibido el 26 de febrero del 2020, aprobado el 31 de agosto del 2020.
Para citar el artículo: Constitutional Amendments: Making, Breaking, and Changing Consti-
tutions, by Richard Albert. En Revista Derecho del Estado, Universidad Externado de Colombia.
N.º 48, enero-abril de 2021, 371-389.
DOI: https://doi.org/10.18601/01229893.n48.13
1 ALBERT, RICHARD. Constitutional Amendments: Making, Breaking, and Changing Con-
stitutions. Oxford: Oxford University Press, 2019, p. 30.
2 ALBERT, RICHARD. Author Interview: Constitutional Amendments: Making, Breaking, and
Changing Constitutions, 2019. Available in: https://blog-iacl-aidc.org/just-published/2019/10/15/
author-interview-constitutional-amendments-making-breaking-and-changing-constitutions.
3 ALBERT, RICHARD. Constitutional Amendments: Making, Breaking, and Changing Con-
stitutions. Oxford: Oxford University Press, 2019, p. 3.
Revista Derecho del Estado n.º 48, enero-abril de 2021, pp. 371-389
372 Roberto Gargarella
Revista Derecho del Estado n.º 48, enero-abril de 2021, pp. 371-389
few topics that I consider of particular relevance. Secondly, the critical view
that I shall assume as my standpoint will be based on a specific theory of
democracy, namely a “dialogic conception of democracy”. Thirdly, most of
the examples I shall consider will come from recent Latin American history.
I believe that these rich regional examples, which do not play a prominent
role in Professor Albert’s book, may be of great help in order to “test” and
challenge many of the claims that the author makes thorough the book.
1. IN PRAISE OF (DEMOCRATIC) THEORY
In the introduction of his book, Professor Albert declares that the two main
purposes of his work are i) “to inspire interest in constitutional amendment;”
and ii) “to guide those seeking to understand how constitutions change”4.
When one finishes reading Constitutional Amendments, it becomes clear that
the author managed to achieve his main objectives: the book does generate
interest in constitutional amendment and provides an attractive guide to those
seeking to understand how constitutional change works. Now, Professor Al-
bert does many other things in his book, besides providing a map for guiding
legal reformers in the sub-explored territory of constitutional amendments:
he suggests that “codified unamendability” is a bad idea; he maintains that
certain forms of judicial review for constitutional amendments are problem-
atic; he discusses the important doctrine of “unconstitutional constitutional
amendments;” he rejects both “formal rigidity” and “hyper flexibility”; and
he finally claims that the rules of change should “keep the constitution stable
and true to popular values yet always changeable when necessary”5 .
I tend to agree with most of Albert’s opinions in these matters, although it
is difficult to properly see where these opinions derive from. As his celebrated
Edmund Burke could have put it: we need his judgements rather than his
opinions on the matter. In other words, we need Professor Albert to articulate
the theory that is “doing the work” behind his important suggestions and
critiques.6 Unfortunately, it is not easy to find the theoretical sources that
give support to such claims, because the author never clearly reveals what
the theoretical foundations of his work are. As a result of this, by the end of
the book, we get an excellent map of the “uncharted terrain” of constitutional
amendments, but we remain with few reasons to go one way or the other.
Therefore –I would suggest– Professor Albert needs to present more clearly
4 Ibid., p. 36.
5 Ibid., p. 271.
6 Paraphrasing Ronald Dworkin (and Kant) I would say that a comparative study of
amendments “without theory is blind […] (a comparative study may become) a way of stating
a conclusion, not a way of reaching one, and theory must do the real work” (DWORKIN, RONALD.
In praise of theory. In: Arizona State Law Journal, n.° 353, 1997, p. 372).
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