Corps de l’article


Formal constitutional amendment rules are largely corrective. Recognizing that a deficient constitution risks building error upon error until the only effective repair becomes revolution,[1] constitutional designers entrench formal amendment rules that can be used to peacefully correct the constitution’s design.[2] Fixing defects is therefore an essential function of formal amendment rules. Political actors generally deploy formal amendment rules to “amend” a constitution—from the Latin verb “emendare”—in order to “free [it] from fault” or to “put [it] right.”[3] Yet formal amendment rules do more than entrench a procedure for perfecting apparent imperfections in the written constitution: they may also serve the underappreciated function of expressing constitutional values.

Much of the current scholarship on constitutional amendment explores informal amendment.[4] This focus, while important, has obscured the continuing relevance of formal amendment rules. Consider formal and informal amendment practices in the United States. Today it is difficult,[5] if not virtually inconceivable,[6] to gather the supermajorities needed to formally amend the United States Constitution pursuant to Article V.[7] That there have been only twenty-seven textual additions to the Constitution since 1789—and of those, ten were packaged as the Bill of Rights—reveals just how rarely political actors have resorted to the constitution’s formal amendment procedures.[8] Spurred by the difficulty of constitutional change through Article V,[9] political actors have innovated alternative methods to keep current the centuries-old constitution.[10] Today, informal amendment prevails so predominantly over formal amendment that Article V amendments have been described as irrelevant.[11] But while Article V amendments may perhaps be irrelevant, Article V itself is not.

Like other formal amendment rules, Article V entrenches special political commitments. We can discern from Article V’s equal suffrage clause, as well as its reference to the importation[12] and census-based taxation[13] clauses, that federalism is an historically important constitutional value in the United States. Germany’s formal amendment rules similarly reflect that state’s constitutional values—specifically the value of human dignity, which is absolutely entrenched against formal amendment in the German Basic Law.[14] We may also look to the Canadian and South African constitutions for evidence that formal amendment rules express constitutional values. Much like the formal amendment rules in the United States Constitution and the German Basic Law, the design of these rules in the Canadian and South African constitutions is more than simply corrective. As I will show,[15] their formal amendment rules entrench a constitutional hierarchy that reflects a rank-ordering of constitutional values.[16]

In this article, I advance the scholarship on constitutional amendment by showing that formal amendment rules—not formal amendments, but the rules pursuant to which formal amendments themselves are made—express constitutional values. My thesis is neither that formal amendment rules always express constitutional values nor that designers necessarily intend formal amendment rules to serve this function. It is instead that formal amendment rules are one of the sites where constitutional designers may express a polity’s constitutional values, both internally to the persons who are nominally or actually bound by its terms, and externally to the larger world. This article generates a research agenda for further inquiry into the use of formal amendment rules to express values.

This is a useful contribution to the study of formal amendment because it both clarifies and complicates their study. It clarifies it by demonstrating that formal amendment rules serve the underappreciated function of expressing constitutional values; yet it also complicates it by stressing that it is not always clear whether the constitutional values entrenched in formal amendment rules express authentic or inauthentic political commitments. This has important implications for constitutional design.

I begin, in Part I, by identifying and explaining the functions scholars have generally attributed to formal amendment rules; I show that none of these functions fully accounts for the expressive nature of formal amendment rules. In Part II, I draw from a number of national constitutions, including the constitutions of Canada and South Africa, to illustrate how formal amendment rules may entrench and express constitutional values by creating a formal constitutional hierarchy. Part III confronts an analytical difficulty: the values that constitutional designers choose to entrench in formal amendment rules may reflect either actual or inauthentic political commitments. Using the German Basic Law as a model, I explain how we may discern whether entrenched constitutional values represent authentic political commitments. I suggest that the authenticity of the constitutional values entrenched in Germany’s formal amendment rules derives from their validation by the Constitutional Court, their centrality to German political culture, and their entrenchment in the Basic Law. I conclude with additional thoughts for deepening the comparative study of formal amendment rules.

I. The Functions of Constitutional Amendment Rules

Few tasks in constitutional design are more important than structuring formal amendment rules.[17] Scholars have attributed several functions to formal amendment rules. Scholars generally understand these rules as managing political action and regulating constitutional change: “Amending formulas set up mechanisms that endeavor to tame constitutional actors and encapsulate the relationship between the constitution and the passage of time.”[18] More specifically, formal amendment rules are said to distinguish a constitution from ordinary law, to structure the formal amendment process, to “precommit”[19] future political actors, and to facilitate improvements or corrections to the constitutional text.[20] They also heighten public awareness, check political branches, promote democracy, and pacify constitutional change.[21] Formal amendment rules do indeed serve each of these functions, as I will explain in this Part. But they should also be understood as one of several sites where constitutional designers may entrench and thereby express constitutional values. None of the functions scholars have attributed to them adequately reflects this expressive role.

A. Why Entrench Formal Amendment Rules?

First, as a basic matter, formal amendment rules distinguish constitutional text from ordinary legislation. Whereas laws are ordinarily subject to repeal or amendment by a simple legislative majority, a constitutional text is often subject to a higher threshold for alteration.[22] This higher threshold could be approval by a legislative or popular supermajority, and it sometimes requires both.[23] More demanding procedures for formal amendment reflect both the relatively higher significance afforded to constitutions over laws and the view that ordinary law is derivative of constitutional law.[24] However, designing formal amendment rules so as to retain a constitution’s distinction from ordinary law may be easier said than done, because it requires pinpointing precisely the right level of amendment difficulty.[25] The higher the frequency of formal amendment, the more the constitution may seem like an ordinary law.[26]

Second, scholars have observed that formal amendment rules structure the process by which political actors change the text and meaning of a constitution. Formal amendment rules provide a legal and transparent framework within which to alter the constitution,[27] whereas informal amendment occurs arguably pursuant to extralegal procedures.[28] To call informal amendment extralegal is not to make a claim about its legitimacy. As Bruce Ackerman has argued, there exist informal—though nonetheless proper—procedures beyond those expressly detailed in Article V to amend the United States Constitution.[29] To describe informal amendment procedures as “extralegal” and formal amendment rules as “legal” is therefore only to highlight that informal amendment procedures are not outlined in a constitutional text, in contrast to formal amendment rules, which are entrenched within it.

Third, formal amendment rules precommit future political actors to the entrenched choices of the constitution’s authors. The strongest “precommitment” device is a subject-matter restriction on formal amendment, which constitutional designers entrench to privilege something in the constitutional design by making it unamendable.[30] To borrow from Sanford Levinson, a formally unamendable constitution would reflect constitutional designers’ “inordinate confidence in their own political wisdom coupled perhaps with an equally inordinate lack of confidence in successor generations.”[31] Constitutional designers may also distrust political actors and consequently create formal amendment rules to limit their future choices.[32] Lawrence Sager makes plain this connection between precommitment and distrust, arguing that constitutional designers make constitutions difficult to amend because “[w]e trust ourselves, perhaps, but not those who will succeed us in stewardship of our political community.”[33] The most important devices to foster precommitment, according to Jon Elster, are supermajorities and delays.[34]

Fourth, scholars have explained that formal amendment rules offer a way to improve the design of a constitution by correcting the faults that time and experience reveal. Brannon Denning and John Vile have made this point persuasively:

If the nation is to continue with a written constitution that contains the specificity of some of the provisions of the existing document, there will be times when, absent flagrant disregard for constitutional language, some amendments will be required as defects become apparent, or changes are desired.[35]

Amendment procedures allow political actors to respond to the changing political, social, and economic needs of the political community[36]—needs that the governing constitution may inadequately serve, whether as a result of suboptimal constitutional design or new social circumstances.[37] Formal amendment rules therefore operate against the backdrop of human error and exist to redress shortcomings in the design of the constitution itself.[38]

Formal amendment rules also heighten public awareness and deliberation. They invite political actors to debate and negotiate publicly about what they believe best serves the common interest, and they “ensure that society acts on well-founded and stable expectations about the consequences” of amending a constitution.[39] Formal amendment rules, which commonly require some form of supermajority action, “promote careful consideration of the issues ... by forcing those in favor of a particular proposition to persuade a larger segment of the population.”[40] Therefore, for Donald Lutz, formal amendment rules are means “[t]o arrive at the best possible decisions in pursuit of the common good under a condition of popular sovereignty.”[41] The product of this public deliberation—a formal amendment inscribed in the text of a constitution—in turn makes possible the publication and reinforcement of constitutional norms. Formal amendment, write Denning and Vile, “undeniably changes the Constitution in one significant respect: it adds language to the Constitution.”[42] As a result, “[t]he publicity accompanying the change may, in fact, increase public expectations that the change will be honored by the other branches [of government], raising the costs of evasion or under-enforcement.”[43]

Sixth, formal amendment rules also act as a check between branches of government. They give political actors a mechanism to revise the informal constitutional amendments entrenched by courts of last resort in the course of constitutional interpretation.[44] Rosalind Dixon observes that formal amendment rules allow political actors both to move courts toward new constitutional interpretations and to trump courts’ constitutional judgments.[45] Interestingly, however, formal amendment rules may also have the opposite effect depending on their rigidity. The more exacting the process of consummating a formal amendment, the more insulated from reversal by amendment the judiciary’s constitutional judgments become; conversely, the less burdensome the formal amendment process, the greater the power held by political actors to shape and reshape constitutional meaning.[46] The durability of judicial judgments is therefore directly proportional to the rigidity of formal amendment.

Scholars have also pointed to the democracy-promoting function of formal amendment rules. The right to amend a constitution is, above all, a right to democratic choice. Perhaps most prominently on this point, Jed Rubenfeld has argued that “[t]he very principle that gives the [US] Constitution legitimate authority—the principle of self-government over time—requires that a nation be able to reject any part of a constitution whose commitments are no longer the people’s own.”[47] Rubenfeld concludes that “[t]hus written constitutionalism requires a process not only of popular constitution-writing, but also of popular constitution-rewriting.”[48] In addition to promoting the majoritarian bases of democracy, formal amendment rules may also promote the substantive dimensions of democracy, namely its counter-majoritarian and minority-protecting purposes. As Roger Congleton explains, formal amendment rules “support the rule of law insofar as constitutional stability is increased and/or minority protections are enhanced.”[49]

Finally, scholars also interpret formal amendment rules as making possible sweeping but non-violent political transformations. This pacifying function is perhaps best articulated by Walter Dellinger, who posits that the Article V amendment process in the United States Constitution “represents a domestication of the right to revolution.”[50] Entrenching the rules of formal amendment in a constitutional text provides a roadmap for effecting constitutional changes that range from modest to major, without having to write an entirely new constitution, resort to irregular methods of constitutional renewal, or take up arms. In the United States at the Federal Convention of 1787, George Mason echoed this very point, recognizing that constitutional amendments would be inevitable but that “it will be better to provide for them, in an easy, regular and Constitutional way than to trust to chance and violence.”[51] This function fosters a higher probability of constitutionally continuous—rather than constitutionally discontinuous[52]—change under formal amendment rules. As Dixon explains, formal amendment rules “increase the chances that such change will occur (at least more or less) within existing constitutional frameworks, rather than via processes of whole-scale constitutional revision or overthrow.”[53]

B. Values in the Constitutional Text

Formal amendment rules certainly do serve each of the eight functions that scholars have attributed to them. But they also have an additional function: to express constitutional values. Although some have suggested or recognized this claim, none has yet to fully develop the thesis that formal amendment rules either expressly declare or more subtly signal constitutional values. Samuel Finer, Vernon Bogdanor, and Bernard Rudden make this point most directly when they state in their important comparative study of constitutions that formal amendment rules “may express basic values.”[54] But these scholars mention this only in passing, without further development, and only in reference to unamendable constitutional provisions. As I will show in the pages to follow, unamendable provisions are not the only formal amendment rules that may express constitutional values.[55]

Stephen Holmes and Cass Sunstein have made a similar observation. In their constitutional design scholarship advising new democracies how to structure their formal amendment rules, they explore both the tension between liberalism and democracy in designing formal amendment rules and the consequences for democracy of adopting stringent formal rules. Holmes and Sunstein argue that the procedures used to formally amend a constitution “[shed] light on the variety of theories underlying different liberal democracies.”[56] They conclude that formal amendment rules “[help] us identify the broad norms and basic commitments behind the constitutional fine print.”[57]

Others have suggested more indirectly that formal amendment rules may be used to express constitutional values. Levinson, for example, has observed that Article V of the United States Constitution “varies the difficulty of the amendment process with the perceived importance of given issues,” referring specifically to the equal suffrage clause.[58] For their part, Denning and Vile have developed the notion of “[t]he [p]ublicity [f]unction of [w]ritten [a]mendments.”[59] But their focus has been on formal amendments themselves, not on the rules for their entrenchment. Dixon has noted that “various countries have established various distinct tracks for constitutional amendment that vary according to the subject-matter of a proposed amendment,” with specific reference to India and South Africa.[60] But these scholars have yet to explain and illustrate how formal amendment rules may actually express constitutional values.

Constitutional scholars have long argued, however, that constitutions may serve an expressive function. Some constitutions are written to reflect the meta-constitutional norms that bind a constitutional community and distinguish this particular community from others. Mark Tushnet explains that constitutions, both in their entrenched institutional arrangements and in the doctrines that emerge from their interpretation, “are ways in which a nation goes about defining itself.”[61] As Tom Ginsburg has observed, “[i]n some polities, constitutions reflect and sometimes even create a shared consciousness, and so overcome regional or ethnic divisions.”[62] He adds that “[t]he symbolic or expressive function of constitutions emphasizes the particularity of constitution-making. It is We the People that come together, and so the constitution embodies our nation in a distinct and local way different from other polities.”[63] Constitutions may therefore express values with the aspirational or functional purposes of self-definition and nation building.[64]

Constitutions may also express values without exerting any immediate or perceptible legal effect. Sunstein has observed that constitutional provisions make statements about a nation’s objectives and aspirations, and that some may attribute significance to such statements even if the consequences of those statements are unclear.[65] He cites as an example an anti-discrimination norm upon which a society might insist “for expressive reasons even if [that society] does not know whether the law actually helps members of minority groups.” He continues:

The point bears on the cultural role of law, adjudication, and even of Constitutional Court decisions. When the Court makes a decision, it is often taken to be speaking on behalf of the nation’s basic principles and commitments. This is a matter of importance quite apart from consequences, conventionally understood.[66]

Expression, then, is distinct from prohibition or authorization.

The values of a constitution reflect what Gary Jacobsohn calls the constitution’s identity.[67] To discern a constitution’s identity, the first though not the only place to look is its text.[68] The “writtenness”[69] of a constitution serves in part to codify a society’s fundamental ideals and structures;[70] but their codification and attendant interpretation need not remain static: they may change over time.[71] This is to be expected since, as Mary Ann Glendon has explained in her comparative study of abortion and divorce, “law, in addition to all the other things it does, tells stories about the culture that helped to shape it and which it in turn helps to shape: stories about who we are, where we came from, and where we are going.”[72] These stories, which we may broadly understand as representing the values held within a community, “seem to have a powerful influence not only on how legal norms are invented and applied within that system, but on how facts are perceived and translated into the language and concepts of the law.”[73] To deconstruct the metaphor, the values expressed by and in law filter throughout the legal system.

II. Constitutional Values and Formal Amendment Rules

Constitutional values are the foundation of any constitutional regime. They help us rank the regime’s rules, principles, and institutional arrangements relative to each other in a hierarchical order.[74] They inform the choices political actors make and how judges interpret the constitution, and they may also reflect how a regime defines itself, both internally and externally. Constitutional values are the equivalent of a trump card in constitutional adjudication: where a constitutional value is set against a non-constitutional value, the constitutional value will prevail in a conflict against the non-constitutional value of efficiency. Constitutional values may moreover be both preservative and aspirational: they may seek to preserve something about the structure of the state—for instance, federalism or republicanism—just as they may aspire to an ideal that is imperfectly attainable but nonetheless deemed worth pursuing—for example, liberty or equality.[75]

A. Creating a Constitutional Hierarchy

Constitutional values are contestable, however, for at least two reasons. First, the content of constitutional values may be contested because they are commonly stated at a high level of generality. This invites competing interpretations of such values as justice, fairness, or the rule of law.[76] Second, the actual identity of constitutional values may be contested because it is unclear how we are to identify which values do, or should, prevail in a constitutional community where those values are not expressly identified in a constitutional text.[77] Were it even possible to agree on a set of values, the challenge of mediating among them would remain. Where one value collides with another, the governing one may be difficult to predict without reference to an authoritative predetermined hierarchy of values, whether formally or informally entrenched.

Constitutional theory can help create a hierarchy of constitutional values. Consider the United States Constitution, a document whose text nowhere expressly declares which values hold greater significance than others. Given the Constitution’s indeterminate text, how are we to identify the values that have precedence within it? Walter Murphy has developed one theory, among several possibilities, to rank-order the constitutional values in the United States Constitution. He begins by acknowledging the difficulty of ranking its values:[78] “At the root of the problem is that the American Constitution—like all such charters—tries to foster not one or two but a whole cluster of values.”[79] But Murphy posits that in light of the evolution of the American polity since its founding, there is one value that is “most fundamental” among the Constitution’s substantive values: human dignity.[80] With human dignity identified as the US Constitution’s core substantive value, we can then proceed to rank order the others by inquiring which are more or less consonant with serving human dignity.[81]

In addition to constitutional theory, constitutional interpretation can also help shape a hierarchy of values. Where the constitutional text does not entrench a formal hierarchy, courts may generate an informal one by way of constitutional interpretation, as constitutional interpretation inevitably compels judges to balance or reconcile competing claims. For example, a court could interpret a constitutional provision as being immune from legal challenges alleging a violation of a protected right or liberty, thereby conferring upon that provision a special status, perhaps as a result of historical circumstance (this is what the Supreme Court of Canada has done with respect to section 93 of the Constitution Act, 1867).[82] Alternatively, a court could, through interpretation, create a hierarchy by adjudicating a dispute that requires the court to balance competing rights that collide.[83] When two or more rights and interests intersect, courts must determine which prevails over the other given the particular facts of the case. As courts resolve more cases like these, an informal constitutional hierarchy emerges among those rights and interests.

For example, in the absence of a textually explicit hierarchy of values in the United States Constitution, US constitutional law has created an informal hierarchy of values through the Supreme Court’s constitutional interpretation. Over the course of American constitutional history, the Supreme Court of the United States has made judgments about which rights, rules, principles, and structures are worthy of greater protection than others. Whether the context has been balancing one right against another, assessing the constitutionality of state action, or simply interpreting the constitutional text, the Supreme Court has effectively rank-ordered US constitutional provisions along a scale of relative importance. The Court’s informal constitutional hierarchy is flexible, subject to revision by subsequent interpretation, and not entrenched against amendment; it is the product of dynamic interpretation, not of fixed constitutional design at the time of the Constitution’s drafting. But it is nevertheless an authoritative declaration of values. In this way, the difficulty of using Article V to formally amend the US Constitution is mitigated by the Supreme Court’s ability to informally order and reorder the hierarchy of constitutional values.

The US Supreme Court’s informal hierarchy is reflected in its tripartite sequence of scrutiny applied to evaluating the constitutionality of state action: rational basis, intermediate, and strict scrutiny. As Richard Fallon has observed, these scrutiny tests emerged as a result of “the Supreme Court’s solidifying commitment to a jurisprudential distinction between ordinary rights and liberties, which the government could regulate upon the showing of any rational justification, and more fundamental or ‘preferred’ liberties entitled to more stringent judicial protection.”[84] The Court has traditionally reserved strict scrutiny—the most stringent level of skepticism shown to a government decision—for state action that is alleged to compromise, among others, racial equality,[85] political rights,[86] and fundamental freedoms.[87] The second highest level of scrutiny—intermediate scrutiny—has been applied to a category of rights and statuses that includes gender discrimination,[88] illegitimacy,[89] and commercial speech.[90] The US Supreme Court applies the lowest level of scrutiny—rational basis—to whatever does not fall within either strict or intermediate scrutiny.[91] The Court’s scrutiny standards therefore express the relative standing of constitutional values by creating an informal hierarchy ordering rights and status along an ascending scale of importance.[92]

In addition to constitutional theory and constitutional law, constitutional design offers another way to establish a hierarchy of values. In contrast to the informal hierarchy that develops through judicial interpretation, constitutional design can create a more formal hierarchy in three principal ways. First, constitutional designers may express values in the constitution’s preamble. As Levinson explains, preambles sometimes convey a “commitment to some scheme of universal values.”[93] Preambles often invoke such lofty ideals as justice,[94] liberty,[95] and democracy.[96] Although these values are often stated a high level of generality that could render them content-less, recent scholarship shows that rights and principles listed in a constitution’s preamble are increasingly interpreted as justiciable.[97]

Second, designers may choose to express values elsewhere in the text of the constitution. For instance, the South African constitution opens, after its preamble, with a declaration that the state is founded on a series of values including human dignity, equality, non-racialism, non-sexism, the rule of law, and multi-party democratic government.[98] Spain likewise expressly states values in the text of its constitution outside the preamble, entrenching the statement that “Spain is hereby established as a social and democratic State, subject to the rule of law, which advocates freedom, justice, equality and political pluralism as highest values of its legal system.”[99] Kazakhstan also follows this model, stating after the preamble of its constitution that “[t]he Republic of Kazakhstan proclaims itself a democratic, secular, legal and social state whose supreme values are the individual, his life, rights and freedoms.”[100]

B. Constitutional Values and Constitutional Hierarchy

Constitutional designers may also entrench and therefore express constitutional values in a third way: in their design of formal amendment rules. When constitutional designers entrench these rules, they may be electing more than a formal amendment procedure; they may be choosing deliberately to identify special political commitments. Formal amendment rules should consequently be seen as a third site where constitutional designers may establish and express a formal hierarchy of values. I use the word may to stress that formal amendment rules are only sometimes intended to express values. The point is therefore a modest one. It is not that all formal amendment rules always convey constitutional values; instead, formal amendment rules are one of many sites within a constitutional order for entrenching values and communicating them both internally (within the constitutional community) and externally (beyond its borders). While all constitutional provisions express some form of both substantive and procedural values, insofar as they are the product of negotiation and often partisan political contests about how to govern a constitutional community, I am focusing on a relatively narrow dimension of constitutional design: the values expressed by the text of formal amendment rules.

With this in mind, consider three provisions—A, B, and C—in a hypothetical written federal constitution currently in draft, prior to its ratification, at a constitutional convention today. Assume that the constitutional designers create three different thresholds for formal amendment and that they make A subject to formal amendment by the lowest of the three formal thresholds: simple majority agreement in both houses of the national legislature and simple majority approval from the sub-national legislatures. The constitutional designers choose to require a higher threshold to formally amend B: supermajority in both houses and supermajority approval from the sub-national legislatures. The designers then subject C to the highest amendment threshold: supermajority agreement in both houses of the national legislature, supermajority approval from the sub-national legislatures, and a national referendum ratified by majority vote.

We can draw four interdependent conclusions about the constitutional designers’ choices with respect to A, B, and C in this hypothetical constitutional design. First, we can conclude that the designers understand A, B, and C as qualitatively different from one another in some respect. Second, we can deduce that the designers wish to find a mechanism by which to validate these perceived qualitative differences. Third, we can recognize that the designers wish to convey their validation of these known differences by entrenching them somewhere in the constitutional text. More specifically, fourth, we can conclude that the designers have identified the rules of formal amendment as one place within the constitution in which they can validate, by way of escalating entrenchment, these known differences among A, B, and C.

This deliberate choice to vary the level of difficulty for formally amending A, B, and C could reflect one of three conclusions. These conclusions are not mutually exclusive and are closely related; yet it is important to distinguish them analytically, even though they may overlap. First, the choice to make one constitutional provision subject to a higher formal amendment threshold could represent a political bargain entered into by the constitutional designers for the sake of ratifying an otherwise “unratifiable” constitution. This possibility is illustrated by the equal suffrage clause in the United States Constitution,[101] which requires a higher amendment threshold for changing a state’s voting power in the Senate than is required for amending anything else.[102] The clause was a “constitutional essential”[103] to the adoption of the US Constitution; smaller states worried that without its protection, the larger, more populous states would overrun their interests.[104] Madison explained that the clause “was probably meant as a palladium to the residuary sovereignty of the States, implied and secured by that principle of representation in one branch of the Legislature; and was probably insisted on by the States particularly attached to that equality.”[105] Entrenching this heightened formal amendment protection was therefore a condition precedent to the Union.[106]

The different thresholds for formally amending A, B, and C could also reflect the concern that future generations of political actors will be tempted to act in their self-interest by seeking to amend certain power-conferring constitutional provisions. The Honduran constitution illustrates such a concern. That constitution’s designers thought it necessary, given the nation’s history, to entrench presidential term limits against formal amendment;[107] accordingly, the constitutional text designates the presidential term limit provision as unamendable.[108] The durability and legitimacy of this rule were recently tested when then-President Manuel Zelaya proposed a national referendum on amending the term limit prohibition.[109]

The choice to vary the level of amendment difficulty among A, B, and C could also reflect a third conclusion, which is the one that will occupy the remainder of this article. The different thresholds for formally amending A, B, and C could reflect a considered judgment about their relative importance. On this theory, to require a more demanding formal amendment threshold for C than for B, and likewise for B than for A, is to declare that C is the most important provision among the three, followed by B, and finally by A. What results from this constitutional design, then, is a formal constitutional hierarchy that identifies the principles, rules, rights, or structures that constitutional designers wish to privilege.[110]

C. Constitutional Hierarchy in Formal Amendment Rules

Constitutional values may therefore be ordered in a constitutional hierarchy in the design of formal constitutional amendment rules. In this section, I will demonstrate how constitutional hierarchies may emerge from four different designs of these rules: (1) an escalating structure of formal amendment rules, as exhibited by the Canadian, South African, Ghanaian, Nigerian, and Indian constitutions; (2) subject-matter restrictions, as demonstrated by the Cuban, Afghan, and Brazilian constitutions; (3) an escalating structure of formal amendment rules alongside subject-matter restrictions, with reference to the Ukrainian constitution; and (4) a non-escalating structure of formal amendment rules alongside subject-matter restrictions, as seen in the Cameroonian and Portuguese constitutions. I note at the outset that we should not attribute the intention to express a relative ordering of constitutional importance to all constitutional hierarchies. As I have stressed above, the entrenchment of a formal constitutional hierarchy can reflect one or more motivations, namely political bargaining, a defense against self-dealing, and the expression of values; it often reflects some combination of these three.

Consider first the Canadian Constitution Act, 1982. Its text creates five escalating tiers of entrenchment with different procedures to formally amend the constitution, each imposing higher and still higher thresholds for altering certain constitutional provisions.[111] The first is known as the general amendment procedure, under which a formal amendment requires resolutions from both the House of Commons and the Senate as well as resolutions from at least two-thirds of the provinces representing at least half of the total provincial population.[112] This procedure is the Canadian constitution’s default rule for formal amendment: unless otherwise specified, all formal amendments must be achieved using the general amendment procedure. The constitution also specifies that certain items—namely provincial representation in the Senate, senatorial powers and elections, and the creation of new provinces―are amendable only through the general amendment procedure.[113]

The second amendment procedure is more stringent than the general procedure, requiring unanimous agreement among both houses of Parliament and each provincial legislature.[114] It applies to five expressly designated matters: (1) the monarchy and its representation in Canada; (2) provincial representation in the House of Commons; (3) the use of English and French, subject to the bilateral/multilateral procedure discussed below; (4) the composition of the Supreme Court of Canada; and (5) the formal amendment procedures themselves.[115] The third bilateral/multilateral procedure, in contrast, is less exacting than the general formula. Under this procedure, resolutions from both houses of Parliament and from the legislature(s) of an affected province are necessary for amendments relating to the alteration of boundaries between provinces, the use of English or French within a province, or any other matter applying to some but not all provinces.[116]

The fourth and fifth procedures—the federal unilateral procedure and its provincial unilateral equivalent—are even less exacting than the bilateral/multilateral procedure. The federal unilateral procedure authorizes the national Parliament to formally amend the Constitution by passing a law.[117] This procedure applies only to matters relating to the executive government or the houses of Parliament, and excludes those matters concerning executive government and the national legislature that are expressly keyed to higher amendment thresholds.[118] The provincial unilateral procedure authorizes provincial legislatures to formally amend their own constitutions by passing a law.[119] This procedure applies to all provincial matters except those specifically assigned higher amendment thresholds.[120]

It is possible to conceptualize these amendment procedures along an ascending scale of difficulty. Each procedure adds an additional hurdle before political actors may consummate a formal amendment. (For the moment, let us set aside the provincial unilateral amendment procedure because it applies only to amendments of a provincial, not the national, constitution, although we should understand a provincial constitution to incorporate parts of the written and unwritten constitution of Canada, and likewise the written and unwritten constitution of Canada incorporates within it parts or all of each of the provincial constitutions.) The procedures along each threshold are cumulative; each one incorporates the lower threshold in some manner. The lowest level of amendment—the federal unilateral procedure—requires simple majorities in each of the two houses of Parliament.[121] The next highest threshold—the bilateral/multilateral procedure—demands both the requirements of the federal unilateral procedure and a resolution from the affected province(s).[122] The general formula is the third highest threshold; it requires both the agreement of the two houses of Parliament and the consent of seven of the ten provinces representing at least fifty per cent of the provincial population.[123] Finally, the unanimity requirement is the hardest one of all, requiring both houses of Parliament and each of the ten provinces to agree.[124]

These escalating tiers of formal entrenchment may signal constitutional designers’ intent to match the level of formal amendment difficulty to the significance of the role the designated provision occupies, either functionally in the constitutional regime or symbolically in the constitutional text.[125] For Stephen Scott, the multiple formal amendment procedures should be seen as “standing in a hierarchy, so that the former stands to the latter as the ‘more difficult’ to the ‘less difficult’”—with Scott referring to the more comprehensive and less comprehensive procedures, respectively.[126] Peter Hogg observes that the highest level of formal entrenchment in the Canadian constitution—the unanimity procedure—applies to the most important matters, what he calls “specially entrenched” provisions that are have national significance: “The five listed topics are specially entrenched because they are deemed to be matters of national significance which should not be altered over the objection of even one province.”[127] Walter Dellinger makes a similar observation, noting that Canada’s formal amendment rules provide “special protection to certain very fundamental matters,” distinguishing the highest amendment threshold from the lower ones.[128] Escalating amendment thresholds may therefore be deployed, as they have been in Canada, to make it harder to amend special constitutional provisions, though they may also be the result of a political bargain or a defense against self-interest, as discussed above.

The South African constitution’s escalating tiers of formal amendment are similar to those in Canada’s Constitution Act, 1982. The South African constitution entrenches three amendment procedures which, like the formal amendment thresholds in the Canadian constitution, may each be used to amend a limited universe of constitutional provisions. Take the most demanding formal amendment procedure. It requires approval by three-quarters of South Africa’s National Assembly and two-thirds of its National Council of Provinces, and it must be used for any formal amendment to the constitution’s declaration of values and to this amendment formula.[129] The mid-level formula calls for a lower threshold—two-thirds approval in the National Assembly and two-thirds approval in the National Council of Provinces—and applies to any formal amendment to the Bill of Rights, the National Council of Provinces, and provincial matters.[130] The least demanding formula requires only two-thirds approval in the National Assembly and is to be used for formal amendments to all other constitutional matters.[131] What results from these escalating thresholds of formal amendment is a constitutional hierarchy, with South Africa’s stated constitutional values and the formal amendment procedures at the top, the Bill of Rights and provincial matters in the middle, and all other constitutional provisions below.

A similar hierarchy is observable in other constitutions that entrench escalating thresholds of formal amendment. In the Ghanaian constitution, formally amending certain provisions, for example the constitution’s protections for fundamental rights and freedoms,[132] requires a very high threshold of agreement: there must be a proposal in Parliament and consultation with the Council of State, followed by a referendum with at least forty per cent popular participation and three-quarters approval, ratification by Parliament, and assent from the President.[133] In contrast, another group of constitutional provisions, for instance the provision authorizing the President to appoint the Chief of Defense Staff of the Armed Forces,[134] may be amended by a moderately less onerous process requiring a proposal in Parliament, consultation with the Council of State, two successive votes of two-thirds approval in Parliament, and the President’s assent.[135] The Ghanaian constitution thus has a two-tier hierarchy that sets fundamental rights and freedoms apart from other provisions.

Likewise, under the Nigerian constitution, there is a difference in thresholds for formally amending different provisions: the Nigerian constitution has a similar two-tier hierarchy that results from its escalating model of formal amendment. At the higher threshold, a formal amendment requires four-fifths approval in both houses of the national legislature as well as two-thirds approval from all sub-national legislatures. This threshold applies to provisions concerning fundamental rights, the creation of new sub-national units, adjustments to territorial boundaries, and the formal amendment rules themselves.[136] Other constitutional provisions may be formally amended with a lower threshold requiring two-thirds approval in both houses of the national legislature and two-thirds approval among sub-national legislatures.[137]

The Indian constitution also entrenches two amendment thresholds. The higher threshold applies exclusively to specifically designated provisions, while the lower threshold applies to all others. The lower threshold requires either house of the national legislature to propose an amendment, each house to pass it by a supermajority, and the President to assent to it.[138] All constitutional provisions are subject to this rule of formal amendment unless they concern the formal amendment rules themselves, the presidential electoral college, Union courts, federalism, or the relative powers of the national and sub-national governments. Where an amendment relates to these subjects, the Indian constitution requires an additional voting procedure prior to the President’s assent: at least half of the sub-national legislatures must ratify the amendment.[139] Just as the Indian constitution suggests through its entrenchment of formal amendment rules that certain provisions may be more highly valued or more politically salient than others, so do the Canadian, South African, and Nigerian constitutions.

We can likewise discern a constitutional hierarchy in subject-matter restrictions on formal amendment rules. When a constitutional text distinguishes one provision from another by expressly designating one of them as impervious to the formal amendment rules that apply to the other, one possible message both conveyed and perceived is that one of the two provisions is more highly valued. The degree to which a constitutional provision is insulated from formal amendment and from the unpredictability of constitutional politics is in this case a proxy for preference. The stricter its entrenchment, the higher the constitutional worth of a given provision. Absolute entrenchment against formal amendment is thus the strongest statement of a provision’s value.[140]

To illustrate the point, consider a few examples of these subject-matter restrictions. The Cuban constitution absolutely entrenches socialism against formal amendment. The text states that socialism “is irrevocable, and Cuba will never go back to capitalism.”[141] For Afghanistan, the similarly situated value is Islam: the Afghan constitution declares that “[t]he principles of adherence to the tenets of the Holy religion of Islam as well as Islamic Republicanism shall not be amended.”[142] And in Brazil, federalism occupies the privileged position that socialism and religion occupy in Cuba and Afghanistan, respectively, insofar as its constitutional text states that “[n]o proposed constitutional amendment shall be considered that is aimed at abolishing ... the federalist form of the National Government.”[143] These content restrictions on the operation of formal amendment rules tell us just how much socialism, religion, and federalism matter in Cuba, Afghanistan, and Brazil. Constitutional designers regarded these principles as so important as to disable the formal amendment rules against them altogether.

A constitutional hierarchy can also emerge concurrently from the combination of formal amendment rules and subject-matter restrictions. Consider the Ukrainian constitution, a text that entrenches subject-matter restrictions alongside escalating tiers of formal amendment. The Ukrainian constitution’s designers set apart three items from others—human rights and freedoms, national independence, and territorial integrity—by designating them as formally unamendable.[144] Visually, we can place these unamendable provisions at the summit of the constitutional hierarchy. At the intermediate level of the hierarchy of importance, we can place the Ukrainian constitution’s statement of general principles, its rules for elections and referenda, and the formal amendment rules themselves, for which the constitution requires a proposal by either the President or two-thirds of the national legislature, adoption again by a two-thirds vote in the national legislature, and ratification via national referendum.[145] Finally, the remaining constitutional provisions sit at the lowest level of Ukraine’s constitutional hierarchy, for which formal amendment is possible by the lower of the two amendment thresholds: proposal by either the President or one-third of the national legislature, adoption by a majority of the national legislature, followed by a subsequent two-thirds vote in the national legislature.[146]

A hierarchy of values likewise emerges when a constitutional text combines a non-escalating structure of formal amendment alongside subject-matter restrictions. For example, the Portuguese constitution entrenches content restrictions alongside a single procedure for formal amendment. The result is a two-tier constitutional hierarchy pursuant to which most provisions are subject to the constitution’s single amendment formula, which requires two-thirds approval from the national legislature.[147] The more valued provisions are designated as unamendable and are therefore immune from this procedure. Consider also the Cameroonian constitution, which entrenches general formal amendment procedures applicable to all of the constitutional provisions except four principles expressly designed as formally unamendable:[148] republicanism, national unity, territorial integrity, and democracy.[149] Cameroon’s hierarchy of constitutional values therefore consists of two tiers: the subject-matter restrictions are on top, and the freely formally amendable provisions are on the bottom.

III. The Authenticity of Formal Entrenchment

The values that constitutional designers choose to entrench in formal amendment rules may reflect either actual or inauthentic political commitments. Where constitutional designers entrench values in order to obscure contrary or ignoble political commitments, the disjunction between the constitutional text and political reality becomes problematic, both for the study of constitutional design and more immediately for those to whom the constitution applies. But to the extent that entrenched values accurately represent the intent or aspiration of constitutional designers, perception and reality mutually reinforce each other in the constitutional text’s declaration of values. In this Part, I will illustrate how the purpose and perception of constitutions and formal amendment rules may diverge. I will also demonstrate how we can evaluate the authenticity of the constitutional values entrenched in formal amendment rules. As will become evident, the task is not an easy one, as it requires inquiry into text, law, and culture. My subject will be the German Basic Law, though the Canadian constitution could serve just as well.[150]

A. Purpose and Perception

Where constitutional designers entrench values in the constitutional text, we may consider these values authentic if the designers intended them to guide successor political and judicial actors in legislative and executive action and in judicial interpretation. On the other hand, where designers entrench values but neither have emotional vulnerability to them nor intend those values to influence successor actors,[151] we may presume that those entrenched values are inauthentic. This presumption may be rebutted with evidence that successor political and judicial actors have subsequently adopted these entrenched values as binding or guiding their conduct. The authenticity of entrenched values, however, is neither immediately nor entirely clear from a constitutional text.

That written constitutions sometimes exhibit a disjunction between purpose and perception is a common critique of the study of formal constitutions.[152] As David Law and Mila Versteeg have conceded in their own work on formal constitutions, “[s]ome may object that formal constitutions are not worth studying because what is on paper does not necessarily translate into practice.”[153] We need not look further than the Kremlin’s 1936 Constitution of the Union of Soviet Socialist Republics to see just how widely political practice may diverge from the constitutional text.[154] For political theorist Benjamin Barber, the Soviet constitution was merely a smokescreen: although it appeared from its words to be “the world’s most effusively rights-oriented constitution” in an “unprecedented fortress of human liberty,” the truth was plainly the opposite.[155]

This disjunction between purpose and perception is what Jan-Erik Lane calls the gulf between the formal written constitution and the real political constitution.[156] Lane acknowledges that no regime successfully fulfills the entirety of its written constitutional commitments, but that some do better than others: “No state lives one hundred per cent in accordance with its written documents.”[157] It is the size of the gulf between the codified constitution and the political constitution that matters in assessing how well or poorly a regime measures up to its formally entrenched commitments. An authoritarian state would likely exhibit much greater dissonance between its written and political constitutions than a democratic one, which is more likely to aspire to harmonize the two. As Lane writes:

[I]n dictatorships and authoritarian states there is typically a tremendous distance between the formal constitution and the real constitution. Often such states enact a constitutional document which has no connection whatsoever to institutional practices in the country. It is only a camouflage constitution.[158]

David Law explains that camouflage constitutions serve a number of ulterior motives, including gaining credibility in the international community or securing foreign investment.[159]

The problem, posits William Andrews, is that over the course of the nineteenth and twentieth centuries, written constitutionalism became synonymous with democracy.[160] “Documentary Constitutions,” he writes, “have come to be identified with constitutionalism.”[161] Authoritarian regimes have taken advantage of this positive identification, exploiting what Giovanni Sartori calls the “favorable emotive properties” of the word “constitution”.[162] Sartori describes the phenomenon in greater detail:

[T]he political exploitation and manipulation of language takes advantage of the fact that the emotive properties of a word survive—at times for a surprisingly long time—despite the fact that what the word denotes, i.e., the ‘thing,’ comes to be a completely different thing.[163]

Equating constitutions with constitutionalism was and remains problematic because authoritarian regimes take advantage of that association to hide behind a strategically drafted democracy-embracing constitutional text that appears consistent with constitutionalism but really is only a façade. As Andrews explains, “many regimes in the world today have Constitutions without constitutionalism. Tyrants, whether individual or collective, find that Constitutions are convenient screens behind which they can dissimulate their despotism.”[164]

Formal amendment rules in constitutional texts are equally susceptible to authoritarian commandeering. Insofar as formal amendment rules reflect the usually unstated value of sovereignty,[165] the rules are a profitable and inexpensive site where authoritarian regimes may express inauthentic values while securing for themselves the goodwill that may come from their public, even if dishonest, association with democratic ideals. Examples abound of suspicious constitutional entrenchment. When we read the Russian Federation’s constitution, which entrenches an escalating scale of formal amendment that makes it comparatively more difficult to amend civil and political rights,[166] we should therefore ask whether this special entrenchment actually expresses an authentic political commitment to protect these rights. This question should also arise when we read the Zambian constitution, which does the same with respect to its own fundamental rights and freedoms.[167] Similar questions may be asked of the formal amendment rules in Bangladesh,[168] Belarus,[169] Ethiopia,[170] or Singapore,[171] among many others.[172] The best answer is to always take a skeptical posture to any special or absolute entrenchment of constitutional values, and to evaluate whether the formally entrenched value aligns in reality with constitutional practice.

One of the weaknesses of entrenching values in formal amendment rules therefore doubles as the biggest weakness of written constitutions: their democratic commitments on parchment sometimes conceal undemocratic practices in reality.[173] Walter Murphy cautions us against supposing that constitutions necessarily bind political actors, because “[t]o think that words can constrain power seems foolish.”[174] Constitutional commitments, after all, are but words on paper—and to borrow again from Law and Versteeg, “sometimes, constitutions lie.”[175] Law and Versteeg have shown that constitutions often promise more than they deliver, not only for illegitimate reasons associated with authoritarian regimes that find shelter under the cover of constitutionalism, but also for legitimate budgetary limitations that, despite good intentions, make it difficult to honour constitutionally entrenched socio-economic rights.[176] The former, however, are examples of “sham constitutions” because they knowingly and purposely fail to live up to the commitments they have publicly undertaken.[177]

Some sham constitutions proclaim a commitment to human rights in their formal amendment rules, yet political actors do not conform their conduct to those commitments; such commitments therefore reflect an inauthentic expression of values. Although in these states, subject-matter restrictions purport to prohibit formal amendments to the human rights protections inscribed in their constitutions, political practice belies the textual respect for human rights. For instance, Afghanistan, Algeria, the Central African Republic, and Chad all entrench subject-matter restrictions on formal amendment to fundamental rights and freedoms, purporting to express the state’s commitment to these rights.[178] But these four constitutional regimes appear in Law and Versteeg’s “hall of shame”, a list of the twenty-five worst sham constitutions that “combine far-reaching promises with relative little respect for rights in practice.”[179] These constitutional regimes benefit from the goodwill of the uninformed, who read the regimes’ respective constitutional texts believing that the texts reflect reality.

Another more recent example of an inauthentic expression of constitutional values is evident in the constitution of the Democratic Republic of the Congo.[180] Drafted by members of the current president’s then-transitional government,[181] the constitution’s formal amendment rules designate several matters—including republicanism, universal suffrage, and representative government—as formally unamendable,[182] and they prohibit formal amendments that have the effect of diminishing human rights and liberties.[183] We can suspect, however, that the Congo’s governing political class is not truly committed to these values,[184] given the state’s low ranking as an authoritarian regime in the Economist’s Democracy Index.[185] That the governing class in the Democratic Republic of the Congo does not appear to conform its conduct to the values entrenched in the constitution’s formal amendment rules suggests that it exploits the entrenchment of these values largely for public relations purposes.

Truly democratic and sham constitutions fall on the extremes of the constitutional spectrum. Both are relatively easy to recognize, particularly when compared to the vast number of middle-range regimes whose combination of constitutional text, institutional structures, political practices, and civil society make it difficult to categorize their constitutions as clearly democratic or clearly sham. For these regimes, the inquiry into the authenticity of the values expressed in their formal amendment rules requires an analysis of the constitutional text, an evaluation of its interpretation by political actors, and an assessment of whether the entrenched constitutional values align with the political culture. This inquiry cannot yield a quick answer, but it is likely to produce the correct one.

B. Designing Constitutional Values

Few would contend that a constitutional text can on its own transform a political culture indisposed to the rules the text enshrines and averse to the values it proclaims. Despite the problematic divergence between constitutional entrenchment and political commitment, the expressive function of written constitutions—and of formal amendment rules more specifically—may nevertheless hold promise for helping to align constitutional text with political practice. As James Madison suggested, although “[i]t may be thought that all paper barriers against the power of the community are too weak to be worthy of attention,” the rules and values entrenched in a written constitution may “have a tendency to impress some degree of respect for them, to establish the public opinion in their favor, and rouse the attention of the whole community.”[186] Perhaps the strength of this tendency may be measured only retrospectively, since the future success of a constitution cannot reliably be known at its drafting. The best hypothesis is that constitutions and the values entrenched within their formal amendment rules are only as strong as their commitment to culturally specific and socially relevant values.[187]

The expressive function of constitutional amendment rules has important implications for constitutional interpretation. The task of interpreting entrenched values need not commit us to a particular technique of interpretation, be it originalism, living constitutionalism, or another method. As I have written elsewhere, formal amendment rules may be both preservative and transformational: they may seek “to preserve something thought to be distinctive about, or fundamentally constitutive of, the state and its people,”[188] or they may “repudiate the past by setting the state on a new course.”[189] We may therefore interpret an entrenched value from an originalist perspective consistent with preservative entrenchment, which “aims to freeze a distinctly historical conception of the state,”[190] or we may alternatively rely on the theory of living constitutionalism to construe the entrenched value as being consistent with transformative entrenchment, which reflects “more of an aspiration than a concretized reality” and a “forward-looking project” that is open to evolving social and political norms.[191]

The interpretation of constitutional values is therefore not necessarily time-bound: it may be a time-specific inquiry that compels the interpreter to take the perspective of the authoring generation, but it may also be free of temporal constraints. The inquiry may create what Gadamer describes as a hermeneutical circle, which entails an interpretation that is “neither subjective nor objective, but describes understanding as the interplay of the movement of tradition and the movement of the interpreter.”[192] This interpretation “proceeds from the communality that binds us to the tradition,” tradition being “not simply a precondition into which we come, but we produce it ourselves, inasmuch as we understand, participate in the evolution of tradition and hence further determine it ourselves.”[193] As I suggest below, the German Constitutional Court’s interpretation of the formal amendment rules in the Basic Law exhibits elements of both historicism and hermeneutics, of originalism and living constitutionalism. It is thus a feature, not a limitation, of my account of the expressive function of formal amendment rules that there are continuities between the contestability of constitutional interpretation in general and of the values entrenched in formal amendment rules more specifically.

The modern constitutional experience in Germany shows how political culture aligns with the values entrenched in formal amendment rules. The Basic Law’s formal amendment rules entrench and express the constitutional value of human dignity: the text states in the first section of Article 1 that “the dignity of man shall be inviolable,” and adds that “[t]o respect and protect it shall be the duty of all state authority.”[194] The rest of the article stresses the importance of human dignity: “The German people therefore acknowledges inviolable and inalienable human rights as the basis of every community, of peace and of justice in the world,”[195] and “[t]he following basic rights shall be binding as directly valid law on legislation, administration and judiciary.”[196] Article 1 is entrenched as a subject-matter restriction on formal amendment, meaning that it is expressly shielded from the Basic Law’s formal amendment procedures: “An amendment to this Basic Law by which the organization of the Federation into Laender, the basic co-operation of the Laender in legislation or the basic principles laid down in Articles 1 and 20 are affected, shall be inadmissible.”[197]

In contrast to the inauthentic political commitments entrenched and expressed only for show in sham constitutions, the Basic Law’s commitment to human dignity is authentic. This authenticity derives from two principal sources: the Basic Law’s design and its interpretation. First, as I discuss below, the Basic Law’s drafters intended to make human dignity its primary constitutional value. The entrenchment of human dignity as a subject-matter restriction was meant to be an actual constraint on governmental conduct and was designed to convey its importance both internally to the persons bound by the Basic Law and externally to the wider world. Second, as I also describe below, the Federal Constitutional Court has interpreted Article 1’s human dignity provision as reflecting the Basic Law’s most important constitutional value.

The Basic Law can be understood only in its historical context. As Christian Walter has observed, “[e]ach constitutional document reflects the preoccupations of the time of its adoption.”[198] The Basic Law is no different. Under the leadership of Konrad Adenauer, the Parliamentary Council made it a point to pass the Basic Law on May 8, 1949, both to mark the collapse of the Third Reich four years earlier on May 8, 1945, and to signal the beginning of a new constitutional regime.[199] Adenauer’s statement at the signing and proclamation of the Basic Law echoes this theme of a new beginning: “Today a new chapter is being opened in the ever-changing history of the German people. ... Those who have witnessed the years since 1933 and the total breakdown in 1945 ... are with some emotion conscious of the fact that today ... a new Germany is being created.”[200] The Basic Law showed how different Germany might become.

Rights protections formed the core of the new constitutional regime. The Basic Law, writes Werner Heun, “was intended to avoid a repetition of these experiences especially by emphasizing fundamental rights and assigning extended powers to a Constitutional Court.”[201] The Parliamentary Council inserted the unamendable provisions into the Basic Law to help guard against the failures of the Weimar constitution, which had failed to curb abuses of power and constrain government conduct.[202] As Gregory Fox and Georg Nolte have written, the Basic Law’s framers

reasoned that if such a clause had been present in the Weimar constitution, Hitler would have been forced to violate the constitution openly before assuming virtually dictatorial power. They concluded that given the traditional orderly and legalistic sentiment of the German people, this might have made a difference.[203]

The Basic Law thus became the first German constitution to entrench rights for citizens and also to require the state to defend those rights against violation.[204] It is founded on rights and rooted “in the experience and in the memory of the holocaust, the war, and the liberation from unprecedented dictatorship, ending inhumanity and tyranny by the notion of freedom and self-determination.”[205] The Parliamentary Council was clear: fundamental rights would be central, not peripheral, to the Basic Law, and human dignity would permeate all fundamental rights.[206]

The origin of the Basic Law’s absolute entrenchment of human dignity therefore lies in the intent to break from Germany’s recent past.[207] The framers of the Basic Law entrenched human dignity as unalterable and thereby identified it as the most fundamental constitutional rights protection in response to Germany’s prior regime, under which human dignity “had been utterly trampled by the Nazis.”[208] The Nazi regime had emphasized the primacy of the state, subordinated the individual, and attributed no intrinsic worth to the individual outside of her interaction with the state or other individuals. “The state did not exist for the citizens’ sake,”[209] according to Craig Smith and Thomas Fetzer; “to the contrary, the citizens existed for the sake of the state. This exaltation of the people collectively, in the form of the state, combined with the denial of individual worth to justify Nazi tyranny ideologically.”[210] But the Basic Law’s entrenchment of human dignity “signaled an unequivocal break with Nazi ideology by strongly countering the core Nazi presumption of the individual’s lack of independent worth.”[211] Making human dignity unamendable conveyed the message that the individual is “unequivocally superior to the state; the Federal Republic exists for the sake of its citizens rather than vice versa.”[212] Absolute entrenchment expressed a special commitment to respecting individual worth.[213]

The absolute entrenchment of human dignity has consequently created absolute boundaries to circumscribe state power. Human dignity today stands at the top of Germany’s constitutional hierarchy. As Donald Kommers explains, human dignity is “the highest value of the Basic Law, the ultimate basis of the constitutional order, and the foundation of guaranteed rights.”[214] It is, in the words of Edward Eberle, the “architectonic principle of the German legal system.”[215] In the leading English study of the Basic Law, Kommers and Russell Miller write that the Basic Law “has placed human dignity at the core of its value system,”[216] and note that the Basic Law’s human dignity clause “expresses the highest value of the Basic Law, informing the substance and spirit of the entire document.”[217] The Basic Law has expressed the state’s commitment to human dignity as its most important value both through the symbolism of its entrenchment and likewise by the effect of its entrenchment,[218] which is enforced by courts endowed by the Basic Law with the power to review governmental conduct.[219]

C. Interpreting Constitutional Values

The consequence of entrenching human dignity absolutely against amendment was predictable: entrenchment granted the judiciary the power to interpret the meaning of this value. As Melissa Schwartzberg has argued, “when constitutional provisions are made unamendable and constitutional courts have final authority over the interpretation of such provisions, entrenchment does not actually inhibit alterations,”[220] but rather “shifts the locus of change—and the power to determine the legitimate scope of mutability—away from legislatures and toward the court.”[221] The German Constitutional Court has used this power to interpret the human dignity provision as the Basic Law’s supreme value,[222] calling it “the highest constitutional principle” in the Basic Law.[223] Insofar as this interpretation conforms to the constitutional design of the Basic Law, it is unproblematic for the Court to make such pronouncements. Nonetheless, scholars and even judges themselves acknowledge the vast discretionary power that the absolute entrenchment of an open-textured provision like human dignity has conferred upon the Constitutional Court.[224]

Theoretically, its absolute entrenchment exempts human dignity from the balancing to which other rights are subject when they clash with competing rights. But in practice, the Constitutional Court has interpreted human dignity as permitting government action that justifiably violates this value and as prohibiting governmental action that unjustifiably violates it.[225] The distinction therefore turns on the extent to which the Court is persuaded to accept the justification. The Constitutional Court has generally read the human dignity protection alongside the Basic Law’s protections for liberty and equality, enshrined in Articles 2[226] and 3,[227] respectively.[228] As Kommers and Miller write, “the relationships among Articles 1, 2, and 3 are symbiotic.”[229] They continue:

Their provisions nourish and reinforce once another [and] the human dignity, liberty, and equality clauses inform the meaning of other constitutional values just as these other values infuse the meaning and limit the reach of the rights guaranteed by these three fundamental articles.[230]

Several Constitutional Court cases exhibit the significance of human dignity in German constitutional law.

In the early Microcensus Case, the Constitutional Court was asked to rule whether the compulsory disclosure of private vacations and recreational trips in a federal census violated the Basic Law’s human dignity protection.[231] The Court concluded that they did not.[232] Balancing the privacy of the individual under Article 2 with the state’s responsibility to govern responsibly, the Court recognized that the pressure of general public compliance could conceivably inhibit an individual’s private personal sphere.[233] But the balance here favoured the state’s census inquiries, both because the inquiries preserved the respondents’ anonymity and did not compel persons to disclose intimate personal details, and because individuals have a social responsibility to respond to such inquiries, which are necessary for government planning and operations.[234]

In the course of upholding the government’s census inquiries, the Court discussed the human dignity provision. The Court asserted that “[h]uman dignity is at the very top of the value order of the Basic Law.”[235] Human dignity means that “every human being is entitled to social recognition and respect in the community”;[236] the state must treat persons as something more than “mere objects”.[237] An individual cannot be required “to record and register all aspects of his or her personality, even though such an effort is carried out anonymously in the form of a statistical survey; [the state] may not treat a person as an object subject to an inventory of any kind.”[238] Within an individual’s private personal sphere, she is “her own master.”[239]

The Lifetime Imprisonment Case is another prominent human dignity case in which a drug dealer killed an addict who had threatened to expose the dealer’s criminal acts.[240] The trial court ruled that the German Penal Code, which set out a mandatory penalty of life imprisonment for killing another to conceal criminal activity, ran counter to Article 1’s human dignity protection.[241] This court held that punishing a person with a life sentence with no possibility of returning to society would amount to treating that person as mere object, and would therefore violate the state’s responsibility to respect every person’s human dignity—a responsibility that extends even to a criminal.[242] The Constitutional Court was then asked to review the trial court’s judgment.

The Court ruled that life imprisonment violates human dignity where the evidence suggests that a prisoner can be rehabilitated.[243] The Court began with Article 2(2) of the Basic Law, which authorizes Parliament to limit an individual’s right to personal freedom.[244] The Court wrote, however, that this parliamentary power is itself limited, most notably by the inviolability of human dignity, which the Court again called “the highest value of the constitutional order.”[245] The Court stressed that “[t]his means that the state must regard every individual within society with equal worth”[246] and reiterated that “[i]t is contrary to human dignity to make persons the mere tools of the state.”[247] The Court connected the risk of treating a person as an object with the punishment of lifetime imprisonment: “[T]he state cannot turn the offender into an object of crime prevention to the detriment of his or her constitutionally protected right to social worth and respect” because “it would be intolerable for the state forcefully to deprive [persons of their] freedom without at least providing them with the chance to someday regain their freedom.”[248]

The meaning of the Basic Law’s human dignity provision becomes clearer with this case. The state is not forbidden from sentencing a convicted criminal to life imprisonment, but if the state imposes this penalty, it assumes the responsibility to work toward rehabilitating the prisoner and helping him re-enter society:

Regarding those prisoners under life sentences, prisons also have the duty to strive toward their resocialization, to preserve their ability to cope with life and to counteract the negative effects of incarceration and the destructive changes in personality that accompany imprisonment.[249]

This responsibility flows from the Basic Law’s human dignity protection: “This task finds its justification in the constitution itself; it can be inferred from the guarantee of the inviolability of human dignity within the meaning of Article 1(1) of the Basic Law.”[250] The Court understood this duty to rehabilitate as interconnected with Article 1 insofar as “rehabilitation is constitutionally required in any community that establishes human dignity as its centerpiece and commits itself to the principle of social justice.”[251] What appears to underpin the inviolability of human dignity is the rejection of persons as objects.

Perhaps the most useful case to demonstrate the Basic Law’s hierarchy of constitutional values is the 1975 Abortion I Case.[252] The subject of the case was section 218a of the Abortion Reform Act of 1974, which removed criminal prohibitions on abortion provided that the procedure was performed by a licensed physician on a consenting woman during the first twelve weeks of pregnancy.[253] Criminal penalties continued to apply for other abortions procured after the third month of pregnancy, with the exception of those pregnancies resulting from rape or incest or those terminated on medical advice.[254] The new law also required a woman to consult with a physician or a counseling agency about assistance available to pregnant women, mothers, and children.[255] Several members of the German Bundestag (the national lower house) as well as a number of German states petitioned the Constitutional Court to review whether the new law violated Article 1’s human dignity provision and Article 2’s right to life provision, among other constitutional rights.[256] This compelled the Court to weigh the competing rights of the mother and the fetus, whose developing life the Court noted is protected by Article 2(2) of the Basic Law.[257]

Relying on the Basic Law’s ordering of values to reach is decision, the Constitutional Court found the new abortion law incompatible with the fetus’s human dignity and right to life.[258] It stated, before reaching the merits of the case, that its deliberation “demands a total view of the constitutional norms and the hierarchy of values contained therein.”[259] Recognizing the importance of the case, the Court added that “[t]he gravity and seriousness of the constitutional questions posed become clear if it is considered that what is involved here is the protection of human life, one of the central values of every legal order.”[260] The Court stressed that its task was not to judge the new abortion law against the values established under another country’s constitution but rather against the values entrenched in the German Basic Law.[261] The Court ultimately held that the law “is void insofar as it exempts termination of pregnancy from punishment in cases where no reasons exist which—within the meaning of the [present] decisional grounds—have priority over the value order contained in the Basic Law.”[262]

Constitutional history played a significant part in the Court’s judgment. The Court explained that the Basic Law’s entrenchment of the right to life was the result of the destruction of life that Germany had seen in its past:

[T]he categorical inclusion of the inherently self-evident right to life in the Basic Law may be explained principally as a reaction to the ‘destruction of life unworthy to live,’ the ‘final solution,’ and the ‘liquidations’ that the National Socialist regime carried out as governmental measures.[263]

Under the Basic Law, the right to life affirms

the fundamental value of human life and of a state concept that is emphatically opposed to the views of a political regime for which the individual life had little significance and that therefore practiced unlimited abuse in the name of the arrogated right over life and death of the citizen.[264]

The Court therefore contrasted the Weimar constitution and the regime that followed it with the Basic Law and the new regime that it sought to create.

Noting that the Basic Law is clear in its language that everyone shall have the right to life—with no “delimitation of the various developmental stages of human life”[265]—the Court affirmed that the right extends to the unborn, or what the Court called developing life.[266] The Court then tied the right to life to human dignity, explaining that the obligation to protect the right to life follows from Article 1: “Wherever human life exists, it merits human dignity; whether the subject of this dignity is conscious of it and knows how to safeguard it is not important. The potential capabilities inherent in human existence from its inception are adequate to merit human dignity.”[267] Yet the Court also acknowledged that the state has an obligation to protect the life of the mother and that the mother’s pregnancy exists within her private personal sphere: “The obligation of the state to take the developing life under its protection also exists in principle with regard to the mother. ... Pregnancy belongs to the intimate sphere of the woman that is constitutionally protected by Article 2 (1) in conjunction with Article 1 (1) of the Basic Law.”[268] It is at this point that the Court invoked the hierarchy of constitutional values to resolve the collision between the rights of the developing life and the rights of the mother.

The Constitutional Court saw the conflict of rights as inhospitable to any compromise: “No compromise is possible that would both guarantee the protection of the unborn life and concede to the pregnant woman the freedom of terminating the pregnancy because termination of pregnancy always means destruction of the prenatal life.”[269] In choosing which of these two rights to privilege, the Court felt itself bound to use the human dignity provision as its guide: “In the ensuing balancing process, ‘both constitutional values must be perceived in their relation to human dignity as the center of the constitution’s value system.’”[270] As a result, the Court elevated the right of the fetus over the right of the mother. In the Court’s view, whereas prohibiting abortion only impairs a woman’s right to self-determination, abortion destroys life: “When using Article 1 (1) as a guidepost, the decision must come down in favor of the preeminence of protecting the fetus’s life over the right of self-determination of the pregnant woman.”[271] Although the Court conceded that “[p]regnancy, birth, and child-rearing may impair the woman’s right of self-determination and the right to many personal developmental potentialities,”[272] it held as determinative that “[t]he termination of pregnancy, however, destroys prenatal life.”[273] The difference between the impairment of human dignity and its destruction was therefore great enough to tilt the Court toward protecting the right of the fetus.

As a final illustration of how the Constitutional Court has interpreted the Basic Law’s inviolable human dignity provision, consider the more recent Aviation Security Act Case.[274] The case arose out of the Aviation Security Act, which Germany adopted in the aftermath of the terrorist attacks of September 11, 2001 in the United States.[275] The law authorized the German Minister of Defence, with the consent of the Minister of the Interior, to order the armed forces to shoot down a commercial aircraft thought to be hijacked in order to be used as a weapon against civilian targets.[276] The Constitutional Court found the law unconstitutional on several grounds, notably because it would “deprive passengers and crew of their right to self-determination and thus make them ‘mere objects of the state’s rescue operation for the protection of others.’”[277]

The Constitutional Court’s refusal to authorize the state to treat a plane’s passengers as objects recalled its earlier decisions in the Microsensus Case and the Life Imprisonment Case. As Kommers and Miller explain, the Court stated that “killing may not be employed as a means to save others, for human lives may not be disposed of ‘unilaterally by the state’ in this way, even on the basis of a statutory authorization.”[278] The Court ultimately held that “an aircraft may not be shot down—and there is no constitutional state duty to shoot it down—simply because it may be used as a weapon to extinguish life on the ground, particularly since the ensuing loss of life would not bring an end to the body politic or the constitutional system.”[279] The Court again referred to the pre-eminence of human dignity as a constitutional value: “Human life is intrinsically connected to human dignity as a paramount principle of the constitution and the highest constitutional value.”[280]

These four leading cases on Germany’s inviolable human dignity provision illustrate the authenticity of the political commitments entrenched in the Basic Law’s formal amendment rules, insofar as the entrenched value aligns with its interpretation and enforcement by political actors. Yet the constitutional design of the Basic Law and its interpretation by the Constitutional Court cannot, on their own, fully explain the alignment between German political culture and the entrenched constitutional value of human dignity. The Basic Law’s design and its interpretation have certainly contributed to the process of “sowing and growing” the constitutional value of human dignity;[281] yet the legislature’s deference to the Court has also helped, particularly where the Court has invalidated legislation on the basis of the human dignity provision and the legislature has responded by re-passing the law into conformity with the Court’s recommendations.[282] Germans themselves have also accepted as worthy and legitimate the absolute entrenchment of human dignity, as I discuss below.

The German Basic Law recently marked its sixtieth anniversary. On that occasion, German constitutional theorist Matthias Mahlmann offered his reflections, calling the Basic Law “a resilient constitution” and “a remarkable success” and noting proudly that “[s]ome aspects of the Basic Law have even become a kind of attractive export article not accounted for in Germany’s foreign trade balance, but nevertheless of considerable importance.”[283] Mahlmann’s analysis underscored the importance of the Basic Law’s human dignity protection, which, in his view, has come to define the Basic Law in the public perception:

The norm, however, that most characterizes the Basic Law in the public perception and in scholarly reflection is the guarantee of human dignity. This particular role is, to a large degree, a consequence of the German past. Nazism still legitimizes the guarantee of human dignity today by the abominable, vivid barbarism of its negation. The guarantee of human dignity formulates, however, not only the desire to refrain from fathoming yet another time a moral abyss, but a promise as well: the perspective to create a legal order that embodies principles of human dignity not only through the absence of misdeeds, but also through legally institutionalized structures of a republican culture of respect.[284]

The concept of human dignity has risen in public esteem as it has been applied across more spheres of German life. George Fletcher states the point: “When the German Basic Law of 1949 declares human dignity to be the foundational value of the constitution, the implications run through all relationships that may come into being.”[285] Not only does human dignity prescribe or proscribe state action, it also influences private action. The Constitutional Court has emphasized this point when explaining that the Basic Law entrenches an “objective order of values.”[286] For the Court, the Basic Law “is not a value-neutral document.”[287] It is a value-laden text whose purpose is to protect rights in all spheres: “This value system, which centers upon dignity of the human personality developing freely within the social community, must be looked upon as a fundamental constitutional decision affecting all spheres of law, both public and private.”[288] The Basic Law’s constitutional hierarchy thus creates a value system extending beyond the public sphere: “Every provision of private law must be compatible with this system of values, and every such provision must be interpreted in its spirit,” declared the Court in the pivotal 1958 Luth Case.[289]

The application of the Basic Law’s constitutional provisions to the private sphere has been called the third party effect doctrine.[290] Under this doctrine, the Constitutional Court interprets and applies the values of the Basic Law in such a way that vindicates those values, whether the matter is constitutional or civil.[291] Frank Michelman calls this the “double aspect” of the Basic Law’s rights protections:

As specifically worded guarantees (‘subjective rights’), they obligate only the state and its officials. These clauses also, however, speak—as a ‘fundamental constitutional decision’ of the German people—for a set of underlying values and principles, an ‘objective value system’ for the whole of German civic life.[292]

Michelman adds that “the Basic Law’s value-orderings must, accordingly, ‘influence the civil law’ throughout, obligating ordinary judges to construe and apply the background-law provisions of the Civil Code always ‘in its spirit’ and never ‘in contradiction with’ it.”[293] This language tracks the Court’s own; the Court has stated that “[t]his system infuses specific constitutional content into private law, which from that point on determines its interpretation.”[294] It is important to note, however, that this doctrine does not contemplate the application of the Basic Law’s rights protections directly to private individuals, but only indirectly, through the Basic Law’s application to private law.[295]

The constitutional value of human dignity therefore derives its force from its entrenchment in the Basic Law, its interpretation by the Constitutional Court, and its centrality to German political culture. The late German political theorist observed that modern Germany has become, “not only by the rules of its constitution but also in the reality of its constitutional life ...[,] a state which has taken seriously its obligations to create favorable external conditions for its citizens to achieve a life in conformity with human dignity.”[296] That Germany’s highest constitutional value is ordered objectively means that it is legally binding upon the entire constitutional community.[297] As Stéphanie Hennette-Vauchez writes, “[t]his objective nature is crucial to securing the success of the principle of human dignity. In fact, such objectivity reinforces considerably its actual normative strength.”[298] This transformation of the Basic Law’s normative aspirations from subjective to objective values is critical to understanding how the values entrenched in the Basic Law’s formal amendment rules have become and have since remained authentic political commitments.


Formal amendment rules do more than serve a corrective purpose. Constitutional designers may entrench formal amendment rules not only to serve the conventional functions scholars attribute to these rules—to distinguish the constitution from ordinary law, to structure the formal amendment process, to precommit political actors, to make improvements or corrections, to heighten public awareness, to check political branches, to promote democracy, and to pacify constitutional change—but also to express constitutional values. Constitutional designers may entrench and thereby express special political commitments in the rules that govern how the constitutional text is formally amended, for example through the creation of escalating or non-escalating amendment procedures or subject-matter restrictions.

That formal amendment rules may express constitutional values is both a clarifying and a complicating contribution to the study of such rules. It is clarifying insofar as it illuminates a function of the rules that scholars have yet to fully explain and illustrate, but it is complicating since we cannot know from text alone whether the values entrenched in formal amendment rules reflect authentic or inauthentic political commitments. We must therefore take a skeptical posture to any special or absolute entrenchment of constitutional values and inquire whether these formally entrenched values align in reality with a state’s political culture. We have seen with respect to the values entrenched in the Basic Law’s formal amendment rules, for example, that German constitutional entrenchment aligns strongly with Germany’s political culture. This alignment appears attributable largely to the Basic Law’s constitutional design and its interpretation, as well as to the popular legitimacy of the Basic Law’s absolute entrenchment of human dignity.

There remains much to study about the expressive function of formal amendment rules. The field of comparative constitutional law could benefit from jurisdiction-specific case studies on the concordance between the values entrenched and expressed in formal amendment rules and those recognized by political actors and citizens. There are also important questions about the strategic, historical, and local reasons why constitutional designers choose to entrench certain constitutional values instead of others. It may additionally be useful to inquire into the degree to which the values entrenched in formal amendment rules are actually vindicated in the judgments of national courts of last resort, to the extent that those values are even justiciable. These and other inquiries into the study of formal amendment rules hold promise for enriching the study of comparative constitutional law and constitutional design.