Making and Breaking Constitutions

The course Making and Breaking Constitutions draws on contemporary constitutional developments, cases and controversies that have in recent years put domestic constitutions around the world to a test. We will cover contentious topics, such as abusive constitutionalism and decisions of various constitutional courts on unamendability.

Although you might be familiar with the idea of breaking constitutional law in the traditional sense, which describes an action contrary to the constitutional rules. This course is not about ordinary political actors during the course of normal politics. The course focuses on how amending actors and constitutional drafters make, unmake, change, and break constitutions.

The course deals comparatively with constitutional texts, their design, and shortcomings. You will learn about foundational concepts, institutions, and ideas that underpin the architecture of a modern constitutional state. We will analyze these concepts to examine interesting real-world but also hypothetical scenarios, such as a constitutional amendment abolishing regular holding of the election, packing courts, and disabling essential checks and balances.

Although the course is primarily advertised for MA students, it is also open to interested BA students, provided that they already had a general course on constitutional law. The course takes on advanced theories but is designed so that even students with little previous knowledge should keep up.

Students are expected to read the required reading beforehand to discuss the material in the class. We will primarily work with the book by Richard Albert, Constitutional Amendments: Making, Breaking, and Changing Constitutions (OUP 2019). Classes will also be taught based on selected research articles. Students will also be provided with optional reading to delve deeper into topics of their interest.

The course is structurally divided into three segments:

• Part I on Comparative Matters, provides students with a theoretical baseline of the origins, nature, issues and methodology of comparative public law, as well as the origins and typology of constitutions. Some of the students might not be familiar with the comparative method. This first part of the course will ensure that all students understand why and how do we compare constitutions?

• Part II on Constitutions, Constitution-making, and Change examines in a comparative context what do constitutions constitute and how are they made. We will cover the theory of constitutional amendment so that we may later understand abusive constitutional change. We will look closely at seminal work on the subject, such as Jon Elster's work on constitution-making and the scholarship of other intellectual giants in the field.

• Part three, on Breaking Constitutions, examines the theory of unconstitutional amendments, abusive constitutional practice, back-sliding. We will look at challenges to modern constitutions to understand how they may fail. We will cover the concepts of dismemberment, abusive constitutionalism and look at potential remedies either via judicial review of constitutional change or transnational assistance to improve the amendment process.

Provisional syllabus (subject to change):

1. Introduction: Constitutional types
2. Methods: Why and what do we compare?
3. Constitution-making
4. Constitutional endurance
5. Constitutional amendment
6. Design of amendment procedures
7. Informal constitutional change
8. Dismemberment and unamendability
9. Abusive constitutionalism
10. Judicial review of amendments
11. Transnational constitution-making