Doyle — Volume 65, Issue 5

Richard Albert's concept of quasi-constitutional amendments describes how constitutional law and practice may diverge without formal amendment, yet the precise relationship between written constitutions and informal constitutional change deserves clearer analysis. Doyle reviews Albert's framework and proposes refinements distinguishing informal from quasi-constitutional amendment. An informal constitutional amendment involves altering a state's operational constitution—the laws and practices constituting governance—without formal amendment to the master-text constitution. A quasi-constitutional statute is ordinary law affecting the state's constitution without amending it. Doyle argues that Albert incorrectly requires proof of intent to contravene amendment rules for an informal change to count as quasi-constitutional, an evidentiary bar that is difficult to establish and deprives legal doctrine of useful purchase. Instead, the article advocates an open-ended assessment of whether formal or informal change is more appropriate in a given context. Informal changes to constitutional law and practice occur regularly without those norms being formally amended. The framework recognizes two overlapping senses of constitution: the set of governmental laws and practices, and the master-text constitution itself. This conceptualization illuminates how constitutional norms change outside formal amendment procedures.

Topics: Constitutional Law · Legal Theory

Keywords: quasi-constitutional amendments · informal constitutional change · master-text constitution · constitutional amendment · informal constitution · constitutional law · state constitutions · constitutional norms