Document Type
Article
Publication Date
3-2018
Publication Title
George Washington Law Review
Publication Title (Abbreviation)
Geo. Wash. L. Rev.
Volume
86
Issue
2
First Page
438
Last Page
512
Abstract
Scholarship has posited two models of constitutionalism. One is short, abstract, and rigid, like the United States Constitution. The other is lengthy, detailed, and flexible, like the constitutions found in many U.S. states and in many other countries around the world. This Article argues that there is a descriptively common and normatively attractive third model: tiered constitutional design. A tiered design aims to combine the virtues of rigidity and flexibility by creating different rules of constitutional amendment for different parts of the constitution. Most provisions are made fairly easy to change, but certain articles or principles are given higher levels of entrenchment. A tiered design can potentially preserve space for needed updates to the constitutional text, a virtue of flexible design, while also providing stability for the core of the constitution and protection against antidemocratic forms of constitutional change, a benefit of rigid forms of constitutionalism as demonstrated by Article V of the U.S. Constitution. Drawing on numerous examples of tiered designs including U.S. states like California and countries as diverse as Canada, Ecuador, India, and Ghana, this Article offers a critical analysis of the architecture of tiered designs and explores how they work in practice. While finding unsurprisingly that enforcement is often imperfect, this Article concludes that judicial and popular enforcement of tiered designs does show promise in helping to combat the wave of antidemocratic constitutional projects that is threatening to engulf much of the world.
Rights
© 2018 David Landau and Rosalind Dixon
Faculty Biography
http://www.law.fsu.edu/faculty-staff/david-landau
Recommended Citation
David Landau and Rosalind Dixon,
Tiered Constitutional Design, 86
Geo. Wash. L. Rev.
438
(2018),
Available at: https://ir.law.fsu.edu/articles/546
Comments
First published in George Washington Law Review.