Document Type

Article

Publication Date

2016

Publication Title

Arkansas Law Review

Publication Title (Abbreviation)

Ark. L. Rev.

Volume

69

Issue

2

First Page

425

Last Page

452

Abstract

While the U.S. Constitution has long been viewed as an outlier along a number of dimensions, recent work has explored the similarities between comparative constitutionalism and the constitutionalism of the states. Scholars have noted that state constitutions look more like the constitutions often found abroad along several key dimensions. Most importantly for our purposes, they are often long, detailed, and specific documents that go well beyond merely setting up a basic framework, and they are often relatively flexible and easy to amend. In contrast, the U.S. Constitution seems unusually sparse and rigid.

This essay argues that the recent work on the similarities between comparative and state constitutions has paid insufficient attention to a key feature: the fact that these texts often try to combine the virtues of a framework or rigid constitution and a specific or detailed constitution. This approach, which I call selective entrenchment, operates by making the mechanisms of constitutional change heterogeneous. That is, most of the constitutional order is made flexible, subject to relatively easy procedures for change. However, using a number of devices, constitutional designers and courts also make some parts of a constitution, or forms of change, more difficult to carry out. In brief, this model of constitutional change seeks to make a constitution easy to update, while also preserving the stability of certain core institutions and values.

This essay argues that selective entrenchment devices are a common-but poorly understood-part of the architecture of state constitutional law. At the same time, it points out ways in which the rich practice of selective entrenchment in comparative constitutional law may suggest improvements and questions for the model at the state level. For example, the long history of these tools in comparative constitutional law is helpful in sharpening common but ambiguous doctrinal mechanisms such as the distinction between amendments and revisions. It also suggests more fundamental questions about why selective entrenchment might be useful in state constitutionalism and how these devices might be deployed, both in beneficial and harmful ways.

The rest of this essay is organized as follows. Part II defines the concept of selective entrenchment and briefly seeks to explain its appeal to modern constitutional designers and courts. Part III develops a typology of tools used by these actors to selectively entrench some parts of a constitution, drawing off of examples from comparative constitutional practice, while Part IV seeks to identify the use of these mechanisms in state constitutions. Part V compares the experiences from comparative and state constitutional law in order to shed light on key issues on selective entrenchment in state constitutional law. It argues that the juxtaposition is useful both in highlighting improvements to design and doctrine, and in raising broader questions about purpose, thus elucidating an undertheorized aspect of state constitutional design. Part VI concludes by arguing that the architecture and practice of selective entrenchment demands more scholarly attention.

The rest of this essay is organized as follows. Part II defines the concept of selective entrenchment and briefly seeks to explain its appeal to modern constitutional designers and courts. Part III develops a typology of tools used by these actors to selectively entrench some parts of a constitution, drawing off of examples from comparative constitutional practice, while Part IV seeks to identify the use of these mechanisms in state constitutions. Part V compares the experiences from comparative and state constitutional law in order to shed light on key issues on selective entrenchment in state constitutional law. It argues that the juxtaposition is useful both in highlighting improvements to design and doctrine, and in raising broader questions about purpose, thus elucidating an undertheorized aspect of state constitutional design. Part VI concludes by arguing that the architecture and practice of selective entrenchment demands more scholarly attention.

Rights

© 2016 David Landau

Comments

First published in Arkansas Law Review.

Faculty Biography

http://www.law.fsu.edu/faculty-staff/david-landau

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