Constitutional Amendment and Dismemberment

Some constitutional amendments are not amendments at all. They are self- conscious efforts to repudiate the essential characteristics of a constitution and to destroy its foundations. And yet we commonly identify transformative changes like these as constitutional amendments no different from others. A radically transformative change of this sort is better understood as a constitutional dismemberment, not a constitutional amendment. A constitutional dismemberment is a deliberate effort to transform the fundamental rights, structure, or identity of the constitution without breaking legal continuity. Dismemberment is a descriptive concept, not a normative one; it can either improve or weaken liberal democratic procedures and outcomes. We can accordingly speak of the dismemberment of the Turkish Constitution from democratic to authoritarian, just as we can interpret the Civil War Amendments as dismembering the infrastructure of slavery in the United States Constitution. In this Article, I draw from three types of constitutions around the world--the codified Constitutions of Brazil, Colombia, India, Ireland, Italy, Jamaica, Japan, Saint Lucia, Taiwan, Turkey, and the United States; the uncodified Constitutions of New Zealand and the United Kingdom; the partially codified Constitution of Canada--to introduce the phenomenon, concept, doctrine, and larger theory of constitutional dismemberment. I explain how dismemberment helps address current problems in the study of constitutional change, how it clarifies our understanding of constitutional amendment, and also how it challenges our presuppositions about how constitutions do and should change.