In this Introductory chapter to “Amending America’s Unwritten Constitution,” the editors invite readers to consider the puzzle presented in the book: How to amend America’s unwritten constitution? The editors undertake a systemic inquiry into each of the major themes raised by the puzzle: What is a “constitution,” what is “America’s” constitution, what does it mean to “amend” a constitution, and how might we identify an amendment to an “unwritten” constitution, specifically the unwritten constitution of the United States. As the editors set out to answer these questions, they survey the existing literature in the field to lay the foundation for the chapters to follow. They introduce the chapters as well as how each of them illuminates the answer to the major thematic questions raised and explored in the book. What results is ultimately both a proper introduction to this book and also an important scholarly resource to understand constitutional change in the United States.

In this chapter, the author offers a comparative outlook on whether and how we might understand the act of “amending” America’s unwritten Constitution. Drawing upon examples from the United States and the United Kingdom, the author argues that the unwritten rule for amending an unwritten constitution is “Just Do It.” Unwritten constitutions are amended when relevant political actors simply ignore existing conventions or taken-for-granted propositions about the constitutional order. But, for such an action to lead to an “amendment,” the change must “stick” – subsequent actors must either treat the prior convention as now merely optional or, more strongly, treat the new practice as a new convention. One condition for “sticking,” he explains, is that those who breach the prior convention offer an explanation for the breach that (a) seems reasonable at the moment of breach and that (b) identifies a large enough class of similar occasions for breach in which departing from the convention would also seem reasonable. Such explanations provide the basis for the sense of obligation (or, sometimes, the sense of “optionality”) that characterizes elements of unwritten constitutions.

When we use the term “amendment,” we are analogizing changes that happen outside the four corners of the text to the those that happen within it – and we know that the inside, textual ones happen through specified procedures that have a democratic component. The amendment idea thus suggests democratically legitimate change – a change carried out by the proper procedures, in recognizable ways. Moreover, the term “amendment” generally connotes legitimacy – not just a change, but a change made according to the rules and one that leaves the basic endeavor of democratic constitutionalism in place. If Congress or the president simply began violating the constitution, for instance, few would reach for the word “amendment” to describe what was happening. The idea of amendment also evokes something persistent and distinct from the constant tussle and fluctuations that characterizes ordinary politics. The author therefore proposes that when we talk about amending America’s unwritten Constitution, we are not typically thinking about evolution in our practices and understandings, but are trying to describe a special set of durable changes that we ought to regard as democratically legitimate.

The first challenge in understanding the courts’ role in unwritten amendments is definitional. “Unwritten amendments” could be understood as overlapping with, but not identical to, amendments to an “unwritten constitution.” Or they could be amendments to the written constitution that leave no trace on the text of the written constitution. In this chapter, the author focuses on the latter in the hopes that it will illuminate the role of the courts. The undeniable reality is that at various times, the Constitution, or various provisions of the Constitution, has been understood in different ways. When those understandings might be considered “unwritten amendments,” however, is not immediately obvious. The author therefore begins by considering several possible definitions of that term she hopes will then help move us toward a more robust understanding of the role of the courts in interpreting, constructing, or participating in “amending” the Constitution.

In this chapter, Sanford Levinson examines the practice and implication of appending amendments to the end of the Constitution and inquires how many times the Constitution has amended. The presumptively correct answer number of amendments, at present, is twenty-seven, but those are only textual amendments to the Constitution. “How many times has the United States Constitution been amended” generates what Wittgenstein well described as “mental cramps.” His own belief was that one could cure these cramps by dissolving many traditional questions of philosophy. We could do the same if we adopted a truly minimalist understanding of “constitutionalism” that allowed, for example, anyone designated as the Ruler to rule by absolute discretion. One might proffer this as a variant of Hobbesian constitutionalism, whereby the sovereign people, realizing that nothing else can in fact guarantee them the security they yearn for, delegate their powers to an all-powerful Leviathan. An alternative is what has come to be identified as “liberal constitutionalism,” with the attached meaning of governments that are established through institutions created (and limited) by the constitution itself.

This chapter uses recent developments in Hungary to examine how the equivalent of political revolution can occur through changes that are, taken individually, in compliance in the constitution but collectively amount to wholesale transformation of the constitutional order. It confronts the question of what limits, if any, exist on constitutional revolutions of this type.

Scholars frequently distinguish between “hard” and “soft” forms of judicial review: “hard” review gives courts the final say on constitutional questions, while “soft” review attempts to strike a balance between judicial and legislative supremacy by giving the legislature the ability to override or set aside what the courts have done. By itself, however, the hard/soft distinction captures neither the degree of finality nor the ultimate impact of judicial review. On the one hand, even in systems of nominally hard review, the government usually retains the ability to effectively override the courts via constitutional amendment. On the other hand, a small but growing number of courts – the Taiwanese Constitutional Court among them – have claimed the power to invalidate constitutional amendments as unconstitutional. Using Taiwan as illustration, this chapter highlights three factors that must be considered in evaluating the extent to which courts have the last word on constitutional matters. First is the formal legal effect of the decision (for example, whether a decision has suspended effect or is valid inter partes rather than erga omnes). Second is the ease with which judicial decisions can be formally overridden or set aside (as in the form of legislative override or constitutional amendment). Third is the extent to which judicial decisions require cooperation and implementation by other institutions of government in order to have practical effect.

The Islamic Republic of Iran prides itself on being the only country with an entirely codified Islamic legal system, and on being a pioneer in the Islamization of constitutional law. Part 1 of this chapter provides an overview of the different models of Islamic constitutionalism currently found in the Muslim world. Part 2 reviews Iran’s highly creative and ambitious project of Islamizing an entire civil law system and codifying Islamic law over a forty-year period and draws attention to the high degree of dynamism and reinterpretation of Shiite legal precepts that this project has required. Part 3 focuses on the making and amendment of Iran’s 1906/1907 and 1979 constitutions – which fused foreign, republican, and Islamic elements in unique ways – and on the role of the 1979 constitution in defining and regulating Iran’s distinctive present-day blend of institutional conflict and policy disagreement among religious conservatives, pragmatic reformers, and revolutionary leftists. Over time, a combination of innovative reinterpretation of Shiite legal principles and constitutional and institutional reform have reshaped the complex relationship between left-leaning legislative institutions constrained by Islamic principles and conservative religious scholars who operate outside the political system but are the arbiters of what it means to respect Islamic principles.

The United Kingdom’s withdrawal from the European Union renders a united Ireland more likely than before. Unification, if it occurs, is likely to be accompanied by significant constitutional change or a new constitution. This chapter explores how the structure of governance could be adapted to make a newly unified state more sensitive to the concerns and aspirations of those from the Ulster Scots and Ulster British traditions. The chapter considers how consociational government for Northern Ireland could continue within a united Ireland, and assesses how a divergence of interests could lead to significant tensions between the national institutions and the devolved institutions, and within the national institutions themselves. The chapter identifies the many provisions of the current Irish constitution that posit a notion of Irish identity exclusionary of those from the Ulster Scots and Ulster British traditions. But their removal—at least without detailed consideration of how the constitution might be amended to respect multiple identities—risks reducing the sympathy of existing citizens for the unified State. The chapter concludes by exploring how the various constitutional changes considered would be interpreted and amendable after unification.

This chapter studies the strategic political origins of gender-equalizing land inheritance reforms using legislative debates newly translated to English, and analysis of historical behavior and motivations. It examines three states and the constitutional amendment mandating women’s electoral representation. Kerala entered independence with one of the highest levels of caste and landholding inequality, alongside small matrilineal communities with high female autonomy. Here, women’s rights to land were weaponized as a source of injustice (to men).Andhra Pradesh also entered independence with high caste and landholding inequality, absent a strong tradition of women’s autonomy. Activism by radical, caste-based movements to undercut caste dominance enabled rethinking of power elsewhere. In this “moderate” example of reform, legislation was symbolic, resonant with newly pivotal female voters but unlikely to be enforced. In Karnataka, moderate caste and landholding inequality enabled a newly empowered party and chief minister to legislate and enforce reform for women, due to women's status as pivotal voters and the promise of fundamentally restructuring political agency. Constitutional reform occurred due to women’s increasingly pivotal role as well-informed voters willing to reward or punish parties for their commitments.

When confronted in the late 1980s with a judicial decision that sought to expand the scope of judicial review over the Executive’s power to detain individuals without trial, the Singapore government rapidly enacted statutory and constitutional amendments that specifically overturned that judicial decision. This Chapter revisits this notorious episode and argues that the widespread criticisms levied on the reactions of the Singapore government are misplaced. As compared to sanctions against judges and direct executive interventions interferences with the judiciary by other authoritarian regimes in response to adverse judicial outcomes, the use of statutory and constitutional amendments to negate objectionable judicial decisions poses the least harm to the integrity and independence of the judicial institution. More fundamentally, the otherwise legitimate objections to authoritarianism should not distract from the fact that political mobilization to effect statutory and constitutional amendments is precisely the proper action that political actors should undertake in a liberal democracy that duly respects constitutionalism/rule of law. This Chapter argues that whether in terms of maintaining the best authoritarian rule from the perspective of authoritarian regime, or facilitating the eventual transition to the ideal of liberal democratic constitutionalism, the episode should be quietly celebrated.