This established the principle of judicial review by which
American courts and particularly the United States Supreme
Court must disallow laws repugnant to the Constitution of the
United States. This decision and its understanding of the
Constitution identifies a formal and definitive authority for
certifying “informal” constitutional changes, giving them a
formal warrant in the Constitution itself, without requiring
any modification of the text, Such changes present them-
selves as no more than a better understanding of the existing
document, superseding erroneous readings of the past. Quite
often this assertion is actually true—or at least accepted as
true by the government and people of the United States of
America.
25 Challenges
Accounts of constitutional amendment and constitutional
change gathered from many different nations as they exist
today remind us that we live at a moment of constitutional
peril. The general trend of constitutional government in many
states for the past decade has been away from constitutional
justice, liberty, and the rule of law towards greater oppres-
sion, corruption, violence, and arbitrary action. Russia, Tur-
key, China, Egypt, Hungary, Poland, the United Kingdom
and the United States are among the most celebrated
examples of nations that beginning from completely different
histories and stages of constitutional development have all in
recent years seen a steep degradation of their constitutional
cultures.
Lawyers and scholars everywhere have considered
whether some specific constitutional infirmity has
contributed to this decline, and which amendments or other
constitutional changes might do the most to protect liberty
and justice against the inroads of corruption and creeping
autocracy. The fault, however, seems to lie less in the
structures of the constitutions themselves than in changes of
public culture, education, and the formation of public opin-
ion. Television, the internet, and the dissemination of infor-
mation on-line make public opinion highly manipulable by
self-interested governments, oligarchs, and wealthy
corporations, to the detriment of the public good. This
undermines the democratic elements of modern constitu-
tional governance.
The absence of an obvious formal or structural remedy to
the decline of constitutional democracy in the early twenty-
first century reminds us of the important role that informal
and cultural constitutional chan ge have always played in the
development of constitutional justice. If the origin of all law
and justice is, as Cicero long ago observed, the love and care
we owe our fellow human beings, then the purity of this
source of law and justice depends on good faith, the bona
fides that we owe to the republic in fulfilling our civic and
constitutional duties. While constitutions can declare the
importance of liberty, justice, and good faith, they cannot
instill these virtues directly in the people. To do so is the duty
of real human beings—and above all the scholars and
practitioners of constitutional law, who teach the public
how to understand and venerate their constitutions,
governments, and duties to each other, and to the laws.
26 Principles and Techniques
Giuseppe Franco Ferrari has usefully observed that constitu-
tionalism as we know it is the product of the liberal tradition,
establishing the government of laws, founded on the consent
of the people, through such basic principles as the protection
of the rights of man and citizen, the separation of powers, the
rule of law, and the constitutional review of statutes codified
in a higher law. These fundamental constitutional principles
and techniques are necessary and fundamental because gov-
ernment without them is invariably unjust and therefore at
odds with the first purpose of the constitutional project.
Constitutionalism begins by establishing provisions bind-
ing both on citizens and on public authorities. Constitutions
establish the aims of the State and the principles and
techniques necessary to accomplish these aims. Formally
confirming this social framework in written form gives the
political community the basis to advance the public good.
The benefits conveyed by deliberately designed and written
constitutions are considerable, but this raises the problem of
formal and informal amendment. Societies and nations can-
not and should not be static in all aspects of their fundamental
laws and institutions. They should aspire to improve, and
most in any case respon d to changing circumstances and
ideas. Amendment is therefore a necessary and inevitable
aspect of every constitution whether this is openly acknowl-
edged or no t.
The principles and techniques of constitutional govern-
ment are two aspects of the same project. Con stitutional
principles declare the aims, values, and core ideology that
the constitution seeks to serve. Constitutional techniques
establish social and political structures that can accomplish
and advance these aims. Both are necessary. Neither can be
effective without the other. Constitutional principles maintain
the purposive element in the enterprise. Constitutional
techniques guide deliberation and establish the institutions
that implement the policies of the State. The applicable
principles and techniques are embodied in the Constitution
itself, but must also reflect the inherent requirements of the
constitutional project. Many constitutional principles and
constitutional techniques are shared by all well-ordered
constitutions, regulating the resort to constitutional
change—by formal, informal, customary, or even by uncon-
stitutional amendment, when circumstances require it.
Formal and Informal Constitutional Amendment 505