By Richard Albert
April 15, 2023
*This is the third article in our series The Promise of an Amendable Constitution in an Uncertain Era. You can view the rest of the pieces in the series here.*
Today, all attempts to amend the U.S. Constitution are doomed to failure. The subject of a proposed amendment does not matter. Whether to create a national popular vote for president or to modernize the rules of presidential succession, the result will be the same: any amendment proposal will fail to make it through the labyrinth the Constitution creates for its own amendment. It is quite simply a fact of current American life that the Constitution is unamendable.
Yet the unamendability of the Constitution differs from the unamendability of many of the world’s constitutions. While other constitutions are unamendable by design or interpretation, the U.S. Constitution is constructively unamendable. This is a peculiar feature of the U.S. Constitution.
In this essay, I explain the three major forms of unamendability in the world: codified unamendability, interpretive unamendability, and constructive unamendability. I then identify the factors that have given rise to the constructive unamendability of the U.S. Constitution. I close on a hopeful note that may reassure Americans longing for the opportunity to amend their Constitution: constructive unamendability is not a permanent feature in the United States. Sooner or later, it will once again become possible to amend the Constitution. We cannot know when that day will come—it may be tomorrow, next year, next decade, or beyond—but we can be virtually certain that it will eventually come, assuming the U.S. Constitution survives until then.
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Constitutions are sometimes resistant to amendment. Whether by formal design or organic development, certain constitutional commitments are shielded from repeal or modification, even where substantial majorities might wish to undo or alter those commitments. We can identify these commitments as rules of unamendability. These rules operate as constitutional handcuffs.
There are three different varieties of unamendable rules, though only the first two are well developed in studies of constitutional change.
Codified Unamendability
Codified unamendability refers to a rule that is formally entrenched as unalterable in the text of a constitution. Written, visible, and vested with the authority that derives from the process of constitution-making, codified unamendability tells political actors and the people that certain items cannot be amended, not even with unanimous agreement. Examples abound. The Brazilian Constitution makes federalism unamendable, the French Constitution makes republicanism unamendable, the Greek Constitution makes the separation of powers unamendable, the Portuguese Constitution makes political pluralism unamendable, and the Turkish Constitution makes the national flag unamendable. Basically anything can be made unamendable.
Just as individual constitutional rules may be designed to be unamendable, so too may entire constitutions. The Fundamental Constitutions of Carolina, written by John Locke, declared themselves to be “the sacred and unalterable form and rule of government of Carolina forever.”
Interpretive Unamendability
Interpretive unamendability arises in the absence of a corresponding codification of unamendability in the text of the constitution. In these cases, unamendability is the product of an authoritative interpretation by legal or political elites that a certain constitutional rule ought to be treated as unamendable even though no official constitutional enactment entrenches the rule against amendment. This declaration or recognition is most commonly made by a court.
For instance, the Supreme Court of India has declared that political actors cannot amend any parts of the “basic structure” of the constitution despite there being no unamendable rules codified in the text of the Indian Constitution. What amounts to the “basic structure” of the Indian Constitution is to be identified by the Court in the course of litigation on whether a given amendment is unconstitutional.
The Constitutional Court of Colombia has innovated a similar form of interpretive unamendability. The “substitution of the constitution” doctrine authorizes Congress only to amend, but not to replace, the Colombian Constitution on the theory that the power of constitutional amendment is not unlimited.
The key distinction between codified and interpretive unamendability resides in the text of the constitution: in the former, the constitutional text specifies what is unamendable; in the latter, an authoritative interpreter of the constitution specifies what is unamendable even where the constitutional text makes no mention of anything in the constitution being unamendable.
Constructive Unamendability
For its part, the U.S. Constitution is unamendable, but not by codification or interpretation. It is constructively unamendable. Constructive unamendability arises when the constitutional text defines a rule as freely amendable but the present political reality reveals that it is not.
Constructive unamendability derives from a political climate that makes the constitution impossible to amend in practice, even though it is readily amendable in theory. It springs neither from constitutional design nor from constitutional interpretation, but rather from constitutional politics. What results is the impossibility of amendment, even though the constitutional text creates no rule against its amendment and even though the authoritative interpreter establishes no limitation on its amendment.
Constructive unamendability may be imputed to a single rule or to an entire constitution. Constructive unamendability is rooted in deep divisions among political actors who ultimately reach the point of stalemate. Under these conditions, amendment becomes impossible unless reformers perform miracles to break the stalemate. The stalemate may stem from political incompatibilities, unpalatable preconditions to amendment, or a strong resistance to entertaining thoughts of amendment despite the constitutional text authorizing the change reformers are unwilling to attempt. Alternatively or in addition, the stalemate may originate from the structural design of the constitution, for instance a complex horizontal or vertical separation of powers that creates multiple veto points along the path to formal amendment.
All three forms of unamendability—codified, interpretive, and constructive—yield an unamendable rule or rules in the constitution. But their forms and origins differ: codified unamendability appears in the text of the constitution as a result of intentional constitutional design; interpretive unamendability appears in rulings of the authoritative arbiter of the constitution as a result of its interpretation of the constitution; and constructive unamendability appears nowhere in writing but its effect reverberates across the jurisdiction as the result of the deep divides that make amendment quite simply impossible.
Constructive Unamendability in the United States
A mix of factors has generated the constructive unamendability of the U.S. Constitution. I will enumerate five of them.
First, federalism creates a complex set of veto points along the path to amendment that would be hard to survive even under the best circumstances.
Second, America’s present political hyper-polarization—now at its highest point in generations—only exacerbates the difficulty of assembling the extraordinary supermajorities required by Article V, which houses the procedures of constitutional amendment in the Constitution.
Third, an underappreciated factor contributes to the constructive unamendability of the Constitution: the popular attachment Americans have to their higher law as a sacred text. The sacrality of the document has fostered a reluctance to tinker with it.
Fourth, an even more underappreciated factor that contributes to the constructive unamendability of the Constitution is the non-use of Article V itself. The longer Article V remains unused, the more its muscles atrophy, and the more pervasive grows the perception that constitutional amendment in the United States is off the table.
Fifth, constitutional reform energies in the country have been redirected away from Article V to courts, where it is judges who now reform the constitution by interpretation. This has been both a cause and consequence of the rigidity of the Constitution.
The Impermanence of Constructive Unamendability
As difficult as it is today to amend the U.S. Constitution, Americans who wish one day again to amend their constitution can take solace from a deep truth about the present state of American constitutional politics: constructive unamendability is not a permanent feature of the U.S. Constitution.
Political circumstances will evolve ultimately to assuage the social, cultural, and political conditions that have generated the Constitution’s current affliction of constructive unamendability.
The degree of amendment difficulty in the United States has varied historically across time. It may be impossible today to amend the Constitution, but one hundred years ago it was amended four times in rapid succession—in less than a decade. This burst of amendment activity prompted calls to rewrite Article V, specifically to make the Constitution harder to amend. This suggests to me that the impossibility of amendment will not necessarily last because constitutional amendment difficulty in the United States is characterized by a condition of temporal variability.
Of course, no one can know whether the constructive unamendability of the U.S. Constitution will endure for another day, another year, another decade, or even longer. All we can know with absolutely certainty is that, today, it is impossible to amend the U.S. Constitution, making it perhaps the world’s most difficult constitution to amend.
Richard Albert is the William Stamps Farish Professor in Law, Professor of Government, and Director of Constitutional Studies, The University of Texas at Austin. He is the author of Constitutional Amendments: Making, Breaking, and Changing Constitutions (Oxford University Press, 2019).
Suggested Citation: Richard Albert, The Constructive Unamendability of the U.S. Constitution, N.Y.U. J. Legis. & Pub. Pol’y Quorum (2023)