‘No Amendment? No Problem Judges, “Informal Amendment”, and the Evolution of Constitutional Meaning in the Federal Democracies of Australia, Canada, India, and the United States’
Date
2021
Authors
Babie, P.
Gava, J.
Orth, J.V.
Bhanu, A.P.
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Pepperdine Law Review, 2021; 48(2):341-424
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John V. Orth, John Gava, Arvind P. Bhanu, Paul T. Babie
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Abstract
This article considers the way in which judges play a significant role in developing the meaning of a constitution through the exercise of interpretive choices that have the effect of "informally amending" the text. We demonstrate this by examiningfour written federal democratic constitutions: those of the United States, the first written federal democratic constitution; India, the federal constitution of the largest democracy on earth; and the constitutions of Canada and Australia, both federal and democratic, but emergingfrom the English unwritten tradition. We divide our consideration of these constitutions into two ideal types, identified by Bruce Ackerman: the "revolutionary" constitutions of the United States and India, and the "adaptive establishmentarian"c onstitutions ofCanadaa ndAustralia. In this way, we show that judicial informal amendment changes constitutional meaning in both revolutionary and adaptive settings. We conclude that whatever the origins of afederal democratic constitution, be it revolutionary or adaptive establishmentarian, and whatever the background of the judges and the text with which they work, in the absence offormal amendment, judges use an image ofthe constitution to give and to change the meaning ofa written text over time. This allows a constitution to adapt to changing social, economic, and political conditions where formal amendment, for whatever reason, proves difficult. But, in some cases, it might also leave a federal democracy with a constitution which the Framers did not intend. Whatever the outcome, though, the judges play a central role in the evolution of constitutional meaning over time, for good or/for ill.
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