Richard Albert (University of Texas at Austin - School of Law; Yale University - Law School; University of Toronto - Faculty of Law; Universidad Externado de Colombia - Facultad de Derecho; Interdisciplinary Center (IDC) Herzliyah - Radzyner School of Law; Universidad de Especialidades Espíritu Santo; Airlangga University) & Yaniv Roznai (Interdisciplinary Center (IDC) Herzliya - Radzyner School of Law) have posted Emergency Unamendability: Limitations on Constitutional Amendment in Extreme Conditions (81 Maryland Law Review (forthcoming 2021)) on SSRN. Here is the abstract:
The study of constitutional amendment has grown into a popular field of scholarly research but there remain many questions left unanswered. One of the most pressing is why constitutional designers choose to impose limitations on the amendment power in periods of emergency, and equally importantly whether these limitations can ever be effective. In this Essay, we outline the many forms of limitations on constitutional amendment in emergencies, what we call “emergency unamendability.” We then trace their causes and origins, we theorize their foundations, we explain how and why they are susceptible to violation, and we propose alternative constitutional design strategies that can frustrate—though never quite prevent—the exercise of the amendment power in emergencies. Our principal purposes are to introduce this phenomenon of emergency unamendability and to encourage further research into the subject.
