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\"In Canada, the 1982 Constitution Act contains the amending formula, which outlines a set of procedures required to make changes to the constitution. Recent debates over Senate reform, the status of the Supreme Court of Canada, and the rules governing royal succession have highlighted how important the amending formula is in maintaining the vitality and relevance of the governing system.\"-- Provided by publisher.

This volume provides a holistic presentation of the reality of constitutional change in 18 countries (the 15 old EU member states, Canada, Switzerland and the USA). The essays offer analysis on formal and informal constitutional amendment bringing forth the overall picture of the parallel paths constitutional change follows, in correlation to what the constitution means and how constitutional law works. To capture the patterns of constitutional change, multi-faceted parameters are explored such as the interrelations between form of government, party system, and constitutional amendment; the interplay between constitutional change and the system of constitutionality review; the role of the people, civil society, and experts in constitutional change; and the influence of international and European law and jurisprudence on constitutional reform and evolution. In the extensive final, comparative chapter, key features of each country's amendment procedures are epitomized and the mechanisms of constitutional change are explained on the basis of introducing five distinct models of constitutional change. The concept of constitutional rigidity is re-approached and broken down to a set of factual and institutional rigidities. The classification of countries within models, in accordance with the way in which operative amending mechanisms connect, leads to a succinct portrayal of different modes of constitutional change engineering. This book will prove to be an invaluable tool for approaching constitutional revision either for theoretical or for practical purposes and will be of particular interest to students and scholars of constitutional, comparative and public law.

\"Quebec has never signed on to Canada's constitution. After both major attempts to win Quebec's approval - the Meech Lake and Charlottetown Accords - failed, Quebec came within a fraction of a percentage point of voting for independence. Everyone Says No examines how the failure of these accords was depicted in French and English media and the ways in which journalists' reporting failed to translate the differences between Quebec and the rest of Canada. Focusing on the English- and French-language networks of the Canadian Broadcasting Corporation, Kyle Conway draws on the CBC/Radio Canada rich print and video archive as well as journalists' accounts of their reporting to revisit the story of the accords and the furor they stirred in both French and English Canada. He shows that CBC/Radio Canada attempts to translate language and culture and encourage understanding among Canadians actually confirmed viewers' pre-existing assumptions rather than challenging them. The first book to examine translation in Canadian news, Everyone Says No also provides insight into Canada's constitutional history and the challenges faced by contemporary public service broadcasters in increasingly multilingual and multicultural communities.\"--Publisher's website.

Proportionality, accepted as a general principle of constitutional law by many countries, requires that government intrusions on freedoms be justified, that greater intrusions have stronger justifications, and that punishments reflect the relative severity of the offense. Proportionality as a doctrine developed by courts, as in Canada, has provided a stable methodological framework, promoting structured, transparent decisions even about closely contested constitutional values. Other benefits of proportionality include its potential to bring constitutional law closer to constitutional justice, to provide a common discourse about rights for all branches of government, and to help identify the kinds of failures in democratic process warranting heightened judicial scrutiny. Earlier U.S. debates over \"balancing\" were not informed by recent comparative experience with structured proportionality doctrine and its benefits. Many areas of U.S. constitutional law include some elements of what is elsewhere called proportionality analysis. I argue here for greater use of proportionality principles and doctrine; I also argue that proportionality review is not the answer to all constitutional rights questions. Free speech can benefit from categorical presumptions, but in their application and design proportionality may be relevant. The Fourth Amendment, which secures a \"right\" against \"unreasonable searches and seizures,\" is replete with categorical rules protecting police conduct from judicial review; more case-by-case analysis of the \"unreasonableness\" or disproportionality of police conduct would better protect rights and the rule of law. \"Disparate impact\" equality claims might be better addressed through more proportionate review standards; Eighth Amendment review of prison sentences would benefit from more use of proportionality principles. Recognizing proportionality's advantages, and limits, would better enable U.S. constitutional law to at once protect rights and facilitate effective democratic self-governance.

The Assembly Clause is the ugly duckling of the First Amendment. Brooding in the shadow of the heralded Free Speech Clause and the venerated Religion Clauses, the \"right of the people peaceably to assemble\" has been described even by its friends as \"forgotten,\" a \"historical footnote in American political theory and law.\" Not once over the past thirty years has the Clause been the subject of the Supreme Court's attention. Instead, like a sleep-deprived parent of quadruplets, the Court has consistently muddled the right to assemble with \"the First Amendment's other guarantees of free expression.\" The Court has not been alone in treating the Assembly Clause as redundant. From the day that Congress first debated putting the right to assemble into the Constitution, critics have asked why, if the Constitution protects the freedom of speech, anyone would \"think it necessary, at the same time, to allow the right of assembling?\" This question goes well beyond the First Amendment: forty-seven state constitutions also have assembly clauses, four of which predate the 1789 version. This Article offers a surprising answer. For over one hundred years before the First Amendment was drafted, American activists advanced what they called their right to \"assemble\" to defend their right to govern themselves. This rhetorical right first emerged to combat a seventeenth-century attempt by the British Crown to eliminate the town meetings and provincial assemblies by which the colonists had long legislated on their own behalf. Decades later, when the British government again attempted to restrict the powers of America's local and provincial assemblies, colonial activists again responded by invoking their right to assemble their own governments and to use those governments' powers to redress their grievances. By the time the American colonists drafted their first assembly clauses in the 1770s, the right to assemble was thus invoked to defend not merely the act of assembling, but also the assemblies that could exercise coercive legal powers to solve their constituents' problems. In other words, the state and federal assembly clauses were interpreted to protect not a redundant right of expression but a novel right of self-government. This Article describes the history of how American colonists first developed and constitutionalized the right to assemble. It argues that the right to assemble was invoked as a right to meaningfully participate in enacting needed legislation, whether directly, by representative, or by the threat of coercive behavior. Although the Article does not adopt the originalist position that the original intent or public meaning of this right has been permanently fixed into the constitutional order, it does argue that the historical context surrounding the early assembly clauses uncovers untapped possibilities for how the federal and state assembly clauses could be interpreted in the present. In an era when politicians choose their voters, millions of taxpayers are formally or effectively disenfranchised, and countless representative governments are inhibited from redressing their constituents' grievances, revitalizing a constitutional protection of self-government seems invaluable.

The nature and scope of the rights protected by the Due Process Clauses of the Fifth and Fourteenth Amendments are among the most debated topics in all of constitutional law. At the core of this debate is the question of whether these clauses should be understood to protect only \"procedural\" rights, such as notice and the opportunity for a hearing, or whether the due process guarantee should be understood to encompass certain \"substantive\" protections as well. An important though little explored assumption shared by participants on both sides of this debate is that the answer to the substantive due process question must be the same for both provisions. This Article questions that assumption by separately examining the historical evidence regarding the original public meaning of the Due Process Clauses of both the Fifth and Fourteenth Amendments with a single question in mind: did the original meaning of each clause, at the time of its enactment, encompass a recognizable form of substantive due process? At the time of the Fifth Amendment's ratification in 1791, the phrase \"due process of law,\" and the closely related phrase \"law of the land,\" were widely understood to refer primarily to matters relating to judicial procedure, with the second phrase having a somewhat broader connotation referring to existing positive law. Neither of these meanings was broad enough to encompass something that would today be recognized as \"substantive due process.\" Between 1791 and the Fourteenth Amendment's enactment in 1868, due process concepts evolved dramatically, through judicial decisions at the state and federal levels and through the invocation of due process concepts by both proslavery and abolitionist forces in the course of constitutional arguments over the expansion of slavery. By 1868, a recognizable form of substantive due process had been embraced by courts in at least twenty of the thirty-seven then-existing states as well as by the United States Supreme Court and the authors of the leading treatises on constitutional law. As a result, this Article concludes that the original meaning of one, and only one, of the two Due Process Clauses — the Due Process Clause of the Fourteenth Amendment — was broad enough to encompass a recognizable form of substantive due process.

From its conceptual origin in Magna Charta, due process of law has required that government can deprive persons of rights only pursuant to a coordinated effort of separate institutions that make, execute, and adjudicate claims under the law. Originalist debates about whether the Fifth or Fourteenth Amendments were understood to entail modern \"substantive due process\" have obscured the way that many American lawyers and courts understood due process to limit the legislature from the Revolutionary era through the Civil War. They understood due process to prohibit legislatures from directly depriving persons of rights, especially vested property rights, because it was a court's role to do so pursuant to established and general law. This principle was applied against insufficiently general and prospective legislative acts under a variety of state and federal constitutional provisions through the antebellum era. Contrary to the claims of some scholars, however, there was virtually no precedent before the Fourteenth Amendment for invalidating laws that restricted liberty or the use of property. Contemporary resorts to originalism to support modern substantive due process doctrines are therefore misplaced. Understanding due process as a particular instantiation of separation of powers does, however, shed new light on a number of key twentieth-century cases which have not been fully analyzed under the requirements of due process of law.

The U.S. Constitution is best understood not as a “social contract,” but as a popularly issued corporate charter. The earliest American colonies were literal corporations of the Crown and, like all corporations, were ruled by limited governments established by their charters. From this, Americans derived their understanding of what a constitution is—the written charter of a sovereign that ordains and limits a government. The key Federalist innovation was to substitute the People for the King as the chartering sovereign. This effectively transferred the “governance technology” of the corporation to the civil government—including the practice of delegating authority via a written charter, charter amendment, and judicial review. Federalists used these corporate practices to frame a government that united seeming irreconcilables—a government energetic yet limited, republican yet mixed, popular yet antipopulist—yielding a corporate solution to the problem of arbitrary rule. Leading founders considered this new government a literal chartered corporation of the People.

The U.S. Prohibition experience shows a remarkable policy reversal. In only 14 years, a drastic shift in public opinion required two constitutional amendments. I develop and estimate a model of endogenous law enforcement, determined by beliefs about the Prohibition-crime nexus and alcohol-related moral views. In turn, the policy outcomes shape subsequent learning about Prohibition enforcement costs. I estimate the model through maximum likelihood on Prohibition Era city-level data on police enforcement, crime, and alcohol-related legislation. The model can account for the variation in public opinion changes, and the heterogeneous responses of law enforcement and violence across cities. Results show that a 15% increase in the homicide rate can be attributed to Prohibition enforcement. The subsequent learning-driven adjustment of local law enforcement allowed for the alcohol market to rebound to 60% of its pre-Prohibition size. I conclude with counterfactual exercises exploring the welfare implications of policy learning, prior beliefs, preference polarization, and alternative political environments. Results illustrate the importance of incorporating the endogenous nature of law enforcement into our understanding of policy failure and policy success.

Should Australia’s Governor-General refuse royal assent to an anti-democratic or intolerant constitutional amendment that has been approved at referendum? The limits on the Australian people’s power to amend their own constitution have, to date, been the subject of limited scholarship. Through application of Yaniv Roznai’s theory of constitutional unamendability, it is argued that political constitutionalism is a core tenet of the Australian constitutional order, a tenet which would likely call for a refusal of assent to an anti-democratic amendment. By contrast, Australia’s relatively weak tradition of legal constitutionalism would not stand in the way of an intolerant alteration to the Australian Constitution. Understanding the legitimate boundaries of the Governor-General’s authority is an ongoing project in Australian constitutional theory. However, these issues can provide fresh insight on long-running academic debates about the role of Commonwealth vice-regal representatives and the source of the Australian Constitution’s authority.