Albert — Volume 65, Issue 4

Constitutional amendments in rigid constitutional democracies face high procedural barriers, leading governments to employ quasi-constitutional amendments that achieve constitutional effects without formal amendment processes. Quasi-constitutional amendments are sub-constitutional alterations to existing constitutional norms, achievable through legislation, political practice, or extra-legal means rather than formal amendment procedures. Albert illustrates this phenomenon through the Canadian Bill of Rights and other examples from constitutional systems with difficult amendment processes. These amendments allow constitutional actors to secure functional equivalents of formal amendments at lower political cost and with greater certainty of success than traditional amendment procedures. However, quasi-constitutional amendments pose significant risks: they blur distinctions between constitutional and non-constitutional law, obscure hierarchies of legal authority, and can reveal mismatches between constitutional design and political practice. The article examines quasi-constitutional amendments in Canada and Australia, demonstrating how formal amendment failure drives innovation in constitutional change. Albert argues that studying quasi-constitutional amendments illuminates both the limits and possibilities of constitutional change in rigid constitutions.

Topics: Constitutional Law · Legal Theory

Keywords: constitutional amendments · Canadian Bill of Rights · constitutional change · rigid constitutions · statutory law · political practice · constitutional design