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Contribution to Book
The Unamendable Core of the United States Constitution
Comparative Perspectives on the Fundamental Freedom of Expression (2015)
  • Richard Albert, Boston College Law School
Abstract
Nothing in the United States Constitution is today formally unamendable. Yet it is worth asking whether the Constitution requires some form of implicit unamendability in order to survive according to its own terms. In this paper, I inquire whether anything in the Constitution — whose constitutional text, history and interpretation are rooted in the concept of popular sovereignty — should be regarded as informally unamendable. I conclude that, if the Constitution is to remain internally coherent, the informal unamendability of the First Amendment’s democratic rights may be a condition precedent to the Constitution’s promise of robust democracy. I nevertheless express some doubt about how political actors might reliably enforce an informally unamendable First Amendment. I suggest in closing that the optimal function of unamendability in modern constitutionalism is its expressive capacity, specifically that unamendability is more effective as a declaration of importance than as a referent for judicial enforceability.
Publication Date
February, 2015
Editor
Andras Koltay
Publisher
Wolters Kluwer
ISBN
978 963 295 533 9
Citation Information
Richard Albert. "The Unamendable Core of the United States Constitution" Comparative Perspectives on the Fundamental Freedom of Expression (2015) p. 13 - 40
Available at: http://works.bepress.com/richardalbert/46/