Comparative Material and Constitution (Sujith Choudhary Article) + Cases – CA 1 and

End Sem

Comparative literature while interpreting the constitution of a country can be really beneficial for
the evolution of a legal system. Because by way of indulging in the process of comparison
consequently we indulge in self -reflection too, and because of this the interpretive process
becomes a deliberative one as claimed by Mark Tushnet. However, the use of comparative
literature by judges should not be merely for the purpose of decorating their judgments.

Importance of Comparative Material:

When it comes to identifying the role of comparative material in interpreting the constitution of
country, there are two approaches:

 Constitutional Nationalism: completely denies the relevance of comparative material. It

believes that the constitution of a country emerges from particular circumstances, culture,
history, and political culture. Therefore, according to this approach constitutional
interpretation should rely exclusively on the sources internal to the specific legal and
political system. This also supports the idea of “our” constitution as could also be seen in
living originalism as proposed by Balkin. Wherein he ascertains that that American
constitution is indigenous to America and these concepts cannot be applied in other
jurisdiction.
 Constitutional Cosmopolitans: whereas on the other hand, Constitutional
Cosmopolitans believe that constitutional guarantees are cut from a single universal cloth.
There are the same principles underlying guarantee of constitutional rights in all the
constitutions across the world.

Therefore, going by the Constitutional cosmopolitan approach it can be ascertained that courts
can rely on the comparative literature to interpret the constitution as they can refer to the
principles underlying a particular right in other country while developing jurisprudence
regarding that in our own country. This also supports the idea that there is nothing wrong in
learning from the countries who have tried and tested a particular approach. However, the same
cannot or should not be done when the context is so different that it doesn’t allow any such
comparison.

Sujit Choudhary in his article titled “Living originalism in India: Our law and Comparative
constitutional law” has noted that “for a constitutional actor to be wordly and sophisticated,
comparative analysis is not a necessity and conversely conversely, that the absence of
comparative engagement is symptomatic of a narrow-minded and dated parochialism”. He infact
proposes that globalisation of the practice of modern constitutionalism is not necessarily in
tension with a genuine commitment to our constitution. He believes in nationalist school and also
accept the cosmopolitan school and thus, he proposes the idea of dialogical school.
Dialogical Approach and Constitution Literature in India

Dialogical model tries to harness the comparative material in the Balkin’s internally
constitutional conservative theory. Dialogical model does not deny the importance of taking into
consideration the national political and social factors. It merely argues that comparative material
can help us in overturning the existing law because of the reason that it goes against the existing
national constitutional assumptions.

Two Indian examples of dialogical approach where we have made reference to foreign
constitution and interpreted our constitution after learning from their experiences.

In these two examples, one is the case (A.K. Gopalan), where comparative materials were
identified to be an evil to be avoided in a manner that furthered the basic goal of Indian
constitutional project. While the another case (Naz Foundation), will be an instance where
comparative materials were used by a court to identify, reframe and enforce the premises of
Indian Constitution that were articulated at its adoption.

AK Gopalan v Madras - It is an apt example of how comparative material can be helpful in

identifying evils to be avoided. One important question faced by court was the kind of
constitutional protection afforded by Article 21 of the Indian constitution.

At the heart of the keys was a choice between two interpretative options:
 interpretation of due process parallel to the kind of protection afforded by American
constitution that is “substantive” due process.
 procedural due process procedure: the legislature chose even if substantive it is grossly
unfair procedure or none at all.

However, while giving this judgement the court also gave reason for not adopting the concept of
“due process” as prevalent in America.

Reference to comparative constitution –

 The court not only denied application of the “due process” but also criticized the
American experience as according to the court, the term “due process” in the constitution
invites unnecessary judicial intervention. Reference was also made to the drafting of
Article 21, where B.N. Rau was warned by Justice Frankfurter on the use of the due
process clause and how it can stand in way of beneficent social legislation. Therefore,
invoking Lochner era libertarianism as a risk, the Constituent assembly deliberately chose
to use the “procedural established by law” in Article 21.
 The juridical character of part IV and its interrelationship with part III were important
issues during Indian constitutional deliberation and reflected the lessons drawn from the
Lochner Era and new Deal Crises.
  Part III of Indian constitution was drafted in a manner to reduce their potential to serve as
a sword, to prevent them from acting as roadblocks to transformative public policies.

Therefore, the American comparative model in this case, operated as a danger to be avoided and
not as a model to be followed. In this case, comparative material facilitated and enabled domestic
constitution by clarifying the worrying implications of certain options for success of Indian
constitution project.

Naz Foundation Case –

The judgment has two important aspects of comparative study while interpreting provisions of
Indian constitution:
 Reliance on the global developments regarding the rights of LGBTQIA+ community.
 Reference to Indian nationalist voice that supports the inclusionary approach.

Reference to global developments –

 The court cited case laws from United States, the European Court of Human Rights,
South Africa, Fiji and Nepal, all of which integrated right to privacy as encompassing the
right to intimate sexual relations.
 The court also relied on case laws from Canada, South Africa to define the content of
right to dignity.
 The court again turned to United States’ Supreme Court and African Constitution Court
to hold that facially neutral ban on unnatural sex without reference to sexual orientation
in fact that it deliberately targeted heterosexuals as a class.
 The court look to the blocked due to the decisions from ECHR and US Supreme Court to
hold the popular disapproval of human sexuality on ground of molarity, no matter how
widespread, is not a legitimate reason to limit constitutionally protected rights.

Reflection on nationalist voice –

One of the most striking feature of the judgment, is its invocation of ideals animating from the
Indian constitution to support its holding.

 The reference was made to “objective resolution” which support an inclusionary

interpretation of our constitution.
 The principle underlying the prohibition of untouchability can also be applied in case of
LGBTQIA+ communities rights.
  The court referred to Austin’s argument that one of the basic purpose of Indian
constitution was to achieve a foster a social revolution, creation of society egalitarian i.e.
all citizens equally free of coercion and restriction by the state or society privately.

Therefore, in this case, the court has not merely relied on the comparative literature or the
jurisprudence in other countries but has also made a deliberative effort to link it with the Indian
ideologies.

Conclusion - Comparative material are interpretative tools for constitutional reflection that help
in identifying what is special or distinctive about a constitutional order. In my opinion, external
constitutional documents can be used as an opportunity for self-reflection and the judges can
have a nourished understanding of the internal constitutional documents. I would also like to
point out that reliance on the comparative literature does not necessarily mean adopting foreign
principles but rather it can help us in affirming our own national constitutional ideologies.
Therefore, foreign ideologies can help us in identifying what we have already committed to in
our constitution as this was aptly shown in Naz Foundation case, where analogy was drawn with
untouchability while considering rights of LGBTQI+ community.
 BBI Judgement (Kenya and Amendment Power)

Amendment Power in Kenya

In the case of Njoya v. Attorney General, the High Court rejected the claim that the amendment
power includes the power to make those changes that amount to the replacement of the
Constitution. The court held that the amendment provision plainly means that Parliament may
amend, repeal and replace as many provisions as desired provided the document retains its
character as the existing Constitution, and that alteration of the Constitution does not involve the
substitution thereof with a new one or the destruction of the identity or existence of the
Constitution altered. Based on the Indian ‘Basic Structure Doctrine’, the Court held that
fundamental constitutional change could be made solely by the exercise of original constituent
power. This principle is elaborated in the recent BBI Judgment.

BBI Judgement

Facts - the case arose out of the judgment of the high court of Kenya in David Ndii v. Attorney
General, where a bill (Constitution Amendment Bill, 2020) containing 74 proposed amendments
to the 2010 constitution.

The bill aimed to implement president's Building Bridges Initiative (BBI) and was supposed to
be the most significant change to the State’s Government since the constitution was adopted in
2010.

It included:
 creation of 70 constituencies;
 increase in Parliament seats;
 the return of cabinet ministers to Parliament ministers;
 creation of prime minister position;
 creation of leader of opposition

Decision of Court –

The bill has been struck down for violation of the basic structure and non-compliance with
substantive requirements of introducing an amendment. One of the point that the court
considered in detail was the applicability of basic structure in Kenya. According to this doctrine,
in absence of explicit limitations on constitutional powers, there are implicit limitation which
constitution should not be amended in a way that changes the basic structure of the Constitution
and its identity.

The court held that the basic structure doctrine is applicable in Kenya. It provides an implied
limitation upon the amendment process set out in article 255-257. The basic structure can be
altered only through an exercise of primary constituent power. The primary constituent power
exercise requires a four-step process:

a) Civic education;
b) public participation;
c) Constituent assembly debate
d) Referendum

Accordingly, the amendments of 2020 was struck down by the court.

The lead judgement on the issue of basic structure was Kiage JA. At its heart key Kiage JA’s
argument is a straightforward one and follows the logic of basic structure. He also locates
successive centralisation of power within the figure of president as a core pathology of
postcolonial African constitutionalism which enable where is pressed into shrug of constitutional
checks and balances through the process of amendment.

The judgment starts with an important statement that the constitution of Kenya is a
transformative is without dispute. Its implementation has met challenges on three grounds:
Limited government – Participatory government (generally wrapped in representative
institution).

In its judgment, the court laid great emphasis on the attributes of the constitution-making process
that resulted in the 2010 Constitution. The judgment is designed to respond to two sets of
pathologies that had plagued Kenyan constitutionalism in its previous iterations:

 First, a culture of hyper-amendment

 Second, a two-decade emphasis on a citizen-led process

The entire judgment was focused on how Kenyans struggled for and won the right to public
participation in constitution-making, and that was the basis for holding that the core of the
Constitution could not be altered without going back to the People.

Important principles laid down -

Article 255-257 of the constitution are substantive and procedural requirements on the secondary
constituent power and not primary constituent power. In this context, the distinction can be made
between:

(a) Primary constituent power (constituent power

(b) Secondary Constituent power
Law making, accordingly, can be of three categories:

 Power of making the constitution

 Power of amending the Constitution
 Power of enacting ordinary laws

1. Primary constituent power: the extraordinary power to draft or radically change the
constitution. It reflects the immediate expression of people. The authority is free and
independent of any constitutional restriction and is unlimited by the constitutional rules and
procedures of previous constitution.
2. Secondary constituent power: constitutive authority for constitutional change which are not
material and therefore do not change the basic structure of the Constitution. In Kenya this
power is exercised through referendum subsequent to public participation and parliamentary
process.
3. Constituted power: those Limited power was created by the constitution and derived from
it. It is a delegated authority limited by the constitution. In Kenya this power to amend the
constitution is in the hands of Parliament.

The basic structure doctrine, according to the court in Kenya, protects the fundamental aspect of
constitution from amendment by the secondary and constituted constituent power. The essential
features of the Constitution that form the basic structure can only be changed to the people
exercising the primary constant power.

Analysis of Judgement

This judgment has wide ranging implication for the sturdy of constitutional law. The judgment
did something which was different from previous approaches, it relied heavily on the history of
the country and the constitution making. It was observed that if you try to alter the basic structure
of the constitution then it not amendment but it is constitutional dismemberment which will have
effect of paralysing the constitution. This is not desirable as the history of the Kenyan
constitution is based on public participation as building block of governance. The court also
made a distinction between the primary constituent power which is in the hands of people and
secondary constituent power which is parliament. Primary constituent power is unlimited but
secondary is limited.

Yaniv Roznai has noted the court’s holistic reading of the constitution, the history and context of
the constitution, and the fundamental structure of the constitution, including the Preamble makes
the judgment ‘decisively people-centred rather than State-friendly’. While the court also drew on
the Indian experience upon which the Kenya High Court relies to assert the doctrine of basic
structure i.e. the Kesavananda Bharti case.

The Kenya’s politics have changed markedly since the introduction of a new constitution in
2010. The final document, which had been debated in parliament for the greater part of two
decades, has ushered in a more decentralised political system and structure that is meant to make
the government more democratically accountable and responsive to the needs of citizens.

Scholars around the world applauded uploaded the BBI judgement. It has been credited to have
“saved the hard-won constitution from the most serious assault in the10 years of its existence and
has also entrenched rule of law and constitutionalism that Kenya is setting into”.

While discussing the scope of amendment to the constitution in BBI Judgment. The Kenyan
court has given lot of importance to public participation, which also go on to the extent of
suggesting that any amendment or alteration can be allowed if it is done with public
participation. This would mean that even the entire constitution can be amended with people’s
participation or referendum.
 Powers of President of USA

The President of the United States is indeed one of the most powerful and influential people on
the planet. The decisions the president makes and the actions he or she takes have national, as
well as global implications. For the purpose of answering this question, I shall, first, explain the
process of election of president in US and how he is elected on a nation-wide basis, second, I
shall focus on the power of president as given under Article II with specific emphasis on
Pardoning power, treaty making power and appointment power. Lastly, I will conclude with my
opinion on the matter.

Presidential Election
The electors to meet in their representative states and vote by the ballot for two persons, each
state gets as many electors as it has members of congress (HOR and Senate)/ there are currently
538 electors in total. A candidate needs 270 out of 538 votes to win presidency. While senate
composition is uniform, the no. of representatives of HOR is based on population. Naturally,
therefore, the bigger states ultimately have a larger share in electoral college as compared to
smaller states.

Powers of President

The president leads the Executive Branch. The executive powers of th e president in the U.S. are
vested in him under Article II, Section I, Clause 1. He or she serves as both the head of state and
the head of government for the U.S., as well as the commander-in-chief of the armed forces.
Despite these impressive titles, the president has strict limits placed on his power and authority.

The president’s responsibilities are outlined in Article II of the Constitution and include:

 Commander in chief of Army and Navy

 Commander in chief of Militia: The power to call state units of the National Guard into
service (in times of emergency he/she may be given the power by Congress to manage
national security or the economy.)
 Treaty making: The power make treaties with Senate approval. He or she can also receive
ambassadors and work with leaders of other nations.
  Appointment making: The power to nominate the heads of governmental departments,
judges to federal courts and justices to the United States Supreme Court. All nominations
must then be approved by the Senate.
 Pardon: The power to issue pardons for federal offenses.
 The power to convene Congress for special sessions.

The propriety of the commander-in-chief power of Army Navy and militia when called into
service of United States’ is evident in itself, this power is enumerated in article II, section 2
clause 1.

Elaborating pardoning power, treaty making power and Appointment power of the president
in detail:

Pardoning Power

The President of the US has the constitutional right to pardon or commute sentences related to
federal crimes. Further, the power only applies to federal crimes and not state crimes, those
pardoned by the President can still be tried under the laws of individual states.

It is a very wide power with impeachment being the only exception. The limitation on this power
are very limited and is free of normal constitutional and political checks and balances. Only with
wisdom and moral sense of president can ensure its appropriate use. In Schick v. Reed, the Court
described the pardon power as an “unfettered” power “completely independent of legislative
authorization”.

It covers two situations:

Reprieves - commutation on lessening of sentence already imposed and it does not absolve the
legal guilt of the person.

Pardon - wipes out the legal effects of a conviction, it can be issued from the time on of an
offence is committed or can also be issued after the full sentence has been served. However, not
before the commission of the offence.
It is an official executive act and has several purposes:

 Temper justice with mercy in appropriate cases

 Broader public policy of ensuring peace and tranquility in the case of a uprising and to
bring peace after internal conflicts.
 Broader public policy of ensuring peace and tranquility in the case of a uprising and to
bring peace after internal conflicts.

Though grant of pardons have been litigated but courts have consistently refrained from
interfering with it and have refused to limit the president’s discretion.

Instances of exercise of pardoning power:

1. President Washington granted amnesty to those who participated in Whiskey Rebellion.

2. President Wilson pardoned a newspaper editor, George Burdick which is famously
known case Burdick v. United states.
3. President Lincoln and President John issued pardon during civil wars.
4. President Ford and President Carter granted to Vietnam era evaders.

Relevant case laws

 United States v. Wilson - Pardon power jurisprudence sprang from Chief Justice John
Marshall’s pen. In United States v. Wilson, he relied on English common law to hold that
a court could not take notice of, and therefore could not give effect to, a pardon that a
prisoner had intentionally declined to plead in court. The Court upheld the prisoner’s
conviction for robbing the mail despite a presidential pardon from an earlier capital
conviction for the same misconduct.
Wilson established that English common law informs the President’s pardon power.
Chief Justice Marshall justified adopting England’s “principles respecting the operation
and effect of a pardon” because the “pardon power had been exercised from time
immemorial by the executive of England to whose judicial institutions ours bear a close
resemblance”
Conflicting cases about pardon acceptance, Burdick v. United States and Biddle v. Perovich,
highlight the distinct theories.

 Burdick v. United States: In Burdick, President Wilson pardoned a newspaper editor,

George Burdick, who had refused to testify by invoking his Fifth Amendment right
against self-incrimination. President Wilson reasoned that Burdick, once pardoned, would
no longer risk self-incrimination and therefore could not refuse to take the stand. The
Burdick Court relied heavily on Chief Justice Marshall’s opinion in Wilson, which had
found a pardon ineffective when not pleaded in court. Burdick’s acceptance condition
logically follows: a pardon, like all contracts, “must be delivered and accepted to be
valid.”
 Biddle v. Perovich: Shortly after Burdick, the Supreme Court seemed to reverse course
in Biddle v. Perovich. Six Justices on the Burdick Court had been replaced between 1915,
when Burdick was decided, and 1927, when the Court unanimously decided Biddle.
Justice Holmes held that the President could commute a death sentence to life
imprisonment without the offender’s consent.

Treaty Making Power

The United States Constitution under Article II, Section 2 provides that the president "shall
have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided
two-thirds of the Senators present concur". Treaties are binding agreements between nations
and become part of international law. Treaties to which the United States is a party also have
the force of federal legislation, forming part of what the Constitution calls ''the supreme Law
of the Land.''

By some it is claimed that in this there has been conferred upon the President a vastly
preponderating power, and that to the Senate there only belongs a comparatively insignificant
and altogether limited function. It is claimed, on the contrary, by others that, in the exercise
of the treaty-making power, the Senate possesses, under the Constitution, equal dignity, equal
power and equal responsibility with the President.

The Constitution does not divide the powers conferred upon the President and the Senate
respectively into two parts, so that the term "to make" should be construed to mean, in the
 first division, "to negotiate," and, in another division, "to consent," thus conferring the one
upon the President and the other upon the Senate.

However, the president shall take advice of the president and consent of the senate to make
treaties. Provided that 2/3rdof the senate present concur. The senate 2/3 rd requirement has
been kept to make the process doubly cautious to prevent disadvantageous treaties. The
framers thought that American interest might be undermined by the treaties entered into
without proper reflection.

However, the modern course is that the president negotiate and signs treaties independently
and then president presents it to the senate for its approval. The “advice and consent” is not
done at all stages of the treaty making.

Case Laws:

Geofroy v Riggs - By this decision of the Supreme Court of the United States, the range of
the treatymaking power is practically without limi tation and may extend to any subject, or
agreement relative there to, not forbidden by the Constitution, and not inconsistent with the
nature of the Government itself and that of the state.

Goldwater v Carter - In 1978, U.S President gave notice to Taiwan of the termination of the
mutual defense treaty and the US court of Appeal held that president did have the authority to
terminate the treaty.

Missouri v Holland – The subject matter of the treaty is not limited to the enumerated
powers of congress,

Appointment Powers

In the context of administrative law, refers to the authority of an executive to appoint and remove
officials in the various branches vested in its authority to do so. In the context of the federal
government, the Appointments Clause of the United States Constitution vests the president with
the authority to appoint officers of the United States, including federal judges, ambassadors, and
Cabinet-level department heads. The appointment powers of the president are given under
Article II, Section 2 clause 2.

Congress may authorize the president, the courts, or the heads of departments to appoint inferior
officers, including federal attorneys, chaplains, and federal election supervisors, among other
positions. The president has the authority to remove his appointees from office, but the heads of
independent federal agencies can only be removed for cause.

The requirements for the appointment are:

 Nomination by the president
 The advise and consent of the senate
 Appointment by the president

Case Laws –

 The U.S. Supreme Court distinguished between officers of the United States and inferior
officers in the 1988 case Morrison v. Olson, clarifying that only Cabinet-level department
heads, ambassadors, and federal judges qualify as officers. All other officers, such as
federal attorneys, district court clerks, chaplains, and federal election supervisors, qualify
as inferior officers.
 In the 2018 case Lucia v. SEC, the court also ruled that the administrative law judges of
the Securities and Exchange Commission are inferior officers and must be appointed by
agency heads rather than hired as agency employees.

Removal Powers

The U.S. Constitution does not include a provision pertaining to the removal of federal
appointees from office. However, the following U.S. Supreme Court cases clarified the
president's sole removal authority:

 Myers v. United States: The court held that the power to remove appointed officials,
with the exception of federal judges, rests solely with the president and does not require
congressional approval.
  Humphrey's Executor v. United States: The court ruled that the heads of independent
federal agencies can only be removed by the president for cause.
 Bowsher v. Synar (1986): The court affirmed that Congress does not have the authority
to remove an executive official from office. Congress may only place statutory limits on
the removal power of the appointing authority, such as establishing cause removal
protections for the heads of independent federal agencies.

Conclusion

In the conclusion, it would not be wrong to say that the Framers of the Constitution wanted to
ensure that the executive branch was powerful enough to act, and so in Article II of the US
Constitution, they established that executive power in the United States is vested in a president,
who has certain powers. In my opinion, as the Presidents campaign for office based on their
policy agendas: the things they promise voters that they will attempt to accomplish while in
office. They use their formal and informal powers to accomplish their policy agendas. However,
apart from these policy agenda we cannot deny that, he also represent the most powerful nation
and its views at global front.

George Edward remarked that “leading the presidency is at the core of the presidency”. This is in
fact evident when we talk about the president of US as he speaks for all American as a mass
public in common place.
 Judicial Review in USA

Despite the mythic light in which we may perceive the Warren court, or controversial cases like
Brown v. Board, the courts are more or less in line with what the dominant national coalition
wants. It would be very ideal to assume that the decisions of the court in judicial review are a
realisation of the American democratic principles, rather in my opinion it’s in an agreement with
the government and greatly depends on the political persuasion and inclined to prevailing
ideological and cultural propensities and interest of the ruling elites. Therefore, it would not be
wrong to say that the court is not an active agent of constitutional change, the court follows and
eventually codifies, the constitutional changes initiated elsewhere.

Origin and Evolution

In the early years of the new American government, the power of judicial review for the federal
Supreme Court was not established. Some Americans did not think that the Court had or should
have the power of judicial review. Instead, many believed that the state courts should retain the
power of judicial review, thereby limiting federal powers.

In the Marbury v. Madison decision, the Court asserted the power of judicial review for the first
time. This case was able to influence the growth of judicial review because for the first time, the
Supreme Court was able to review a federal legislation by the congress and strike it down on the
grounds of irreconcilable conflicts. Judicial review is the power of the Supreme Court to
examine the actions of another branch of government. Such power means that the Supreme Court
can look at acts of legislation passed by the U.S. House and Senate or actions of the president or
the Executive Branch and determine whether or not it is constitutional. Judicial review allows the
Court to prevent government from interfering in areas it should not. It also allows the Court to
prevent the government from taking action in ways or places where it does not have
constitutional authority.

Judiciary Supports Political Coalition – View of Scholars

The statement in the question is itself made by Mark Tushnet, who was of the firm belief that
judicial review is nothing but reassurance of the political will. This opinion has been supported
by various academician. According to him the Supreme Court often acts on behalf of a national
political majority that has not yet worked its will through legislation. Mr. Dooley said, “No
matter whether the Constitution follows the flag or not, the Supreme Court follows the election
returns”.

While assessing the judicial trend in America, Robert Dahl argued that the Court could not
sustain a non-majoritarian role because it is necessarily and inevitably a part of the dominant
national political coalition. The recruitment process assures that justices will be drawn from the
political arena, and can be expected to be supportive of the political system which recruited
them. According to Dahl, an exception might occur when the old national political coalition
collapses and a new political coalition emerges. The “old” justices are out of touch with the new
order, causing some temporary constitutional turbulence. As new, more politically attuned,
justices join the Court, it moves back into “natural” harmony with the dominant political
coalition.

Studies on American constitutional history of judicial interpretation suggests that in times of

crises and panic, and despite the dejure protection of minorities by bills of rights, judges are
likely to be swept along by the same tide of emotion and prejudice that moves legislators, the
media, and the public.

Instances of Decision in Support of Political Majority

 Brown v. Board of Education: The Court’s decision in Brown might best be understood
as enforcing a national political view against a regionally dominant one that happened to
have excessive power in Congress. By 1954 segregation was an embarrassment to a
national political elite concerned about how the United States looked to the rest of the
world. Communists in the United States, and supporters of the Soviet Union around the
world, pointed to Southern apartheid to demonstrate that what they described as the
democratic Soviet system was superior to the fake democracy in the United States. As
law professor Derrick Bell has pointed out, the Supreme Court typically has acted to
benefit African- Americans only when African-American interests converged with the
interests of whites.
  Abortion Case: The abortion cases show the Supreme Court acting on behalf of a latent
national political majority even though the 1973 decisions invalidated abortion laws
throughout the nation. Much had happened before the Supreme Court’s abortion
decisions in 1973. While purporting to avoid the “abortion on demand” position taken by
the most vigorous advocates of abortion rights, the Court’s decisions actually went very
far in that direction. Yet these were decisions by the supposedly conservative Burger
Court. The supposedly more conservative Rehnquist Court modified the holdings in the
abortion cases, now allowing states to regulate if they do not impose an “undue burden”
on the right to choose, but expressly said that the “core holding” of Roe v. Wade
remained good law.

Political will behind this decision - By the early 1970s the Democratic coalition began to
fracture into interest groups competing with each other for their shares of a no-longer expanding
economic pie. The party’s leaders were unable to develop a program that would unite the
declining labor movement, African-Americans, environmentalists, and feminists. Republican
leaders saw their opportunity to exploit these emerging divisions within the Democratic
coalition. The political outcome was a shift in the presidency from Democratic to Republican
control. Republican presidents appointed relatively conservative justices to the Supreme Court.
Considering the argument that courts are political institutions. Like other political institutions,
they seek to develop constituencies that support them. The disintegration of the New Deal
coalition freed up political space, but during Burger’s tenure and perhaps to the present, no
alternative coalition replaced the New Deal coalition. That gave the Court an opportunity to act
relatively freely to develop its own constituency of support. Once again we can understand the
Court’s decisions in Mr Dooley’s terms: The Court was following the election returns, although
the returns in the 1970s and 1980s were sufficiently unclear that the Court had some space to
pursue its own political agenda. It thus seems appropriate that the major constitutional victory for
women in the 1990s has been a decision finding unconstitutional sex-segregated public education
at one of only two such institutions that remained operating.

 Dred Scott v Sandford - Political scientist Mark Graber identified another way in which
the courts respond to national politics or, more precisely, to national politicians.
According to Graber, sometimes national politicians notice a “no-win” issue: No matter
 what position they take on the issue, they will lose politically. And sometimes they rely
on the courts to bail them out of this political problem: They defer the issue to the courts.
They can use the courts’ decision to test the political waters. They can climb aboard the
courts’ bandwagon if it turns out that enough people support the decision, and they can
attack the courts for making the wrong decision and taking the issue away from the
people if it turns out that enough people dislike it. Dred Scott v. Sandford would be best
example for this wherein it was not a result of judicial power-grab or the justices’
calculation that they could resolve the slavery issue, but rather from a decision by
national politicians to send the slavery issue to the courts. In deciding Dred Scott, the
Court was carrying out the wishes of Jacksonian moderates who desperately hoped that
persons aggrieved by whatever decision the justices eventually made might nevertheless
be more disposed to accept constitutional principles announced by a ‘neutral’ judiciary
than public policies enacted by elected officials.
 Bowers v Hardwick - the U.S. Supreme Court refused to declare the State of Georgia's
sodomy laws unconstitutional, making it a criminal offense, punishable by imprisonment,
for two consenting men to engage in homosexual activity in private. In a five to four
decision that has been widely criticized, the Chief Justice, concurring in judgment, drew
inspiration for sustaining the law from the condemnation of homosexuality that he said
was firmly rooted in Judeo-Christian moral and ethical standards. In so doing, he referred
to homosexual lovemaking as "the infamous crime against nature" and as an offense of
"deeper malignity" than rape, a heinous act, "the very mention of which is a disgrace to
human nature" and "a crime not fit to be named.
 Buckley v Valeo - the Court struck down campaign finance reform that put spending
limits on political candidates and so called third parties, on the ground that such limits
violate the First Amendment's guarantee of free speech.
 Gregg v. Georgia: the Court put its stamp of approval on the death penalty, after calling
it into question a few years previous in Furman v. Georgia.
 United States v. Lopez: the Court held that Congress had exceeded its constitutional
authority in forbidding students from carrying handguns in local public schools.
 McCleskey v. Kemp: the Court upheld Georgia's death penalty even in the face of an
undisputed statistical study showing racial bias in its application
Indeed, the widely celebrated Bill of Rights did not prevent the U.S. Supreme Court from
reconfirming the legal status of slavery and servitude before the Civil War,' or from blocking
anti-laissez faire initiatives aimed at protecting workers in the first decades of the twentieth
century. The Supreme Court did not protect Japanese Americans who were detained in
concentration camps during World War II,1 nor did the First Amendment prevent the Supreme
Court from upholding the persecution of Communist Party members during the McCarthy period
through legislation stating that whoever knowingly or willfully advocates, abets, advises, or
teaches the duty, necessity, desirability, or propriety of overthrowing or destroying any
government in the United States [shall be fined or imprisoned]. From Dred Scott v. Sandford to
Bowers v. Hardwick, from Gregg v. Georgia to Buckley v. Valeo, McCleskey v. Kemp to United
States v. Lopez, and with the often-cited exception of the Warren Court, the Supreme Court
maintained its historic position on the Right of the American political spectrum.

So in conclusion the United States Constitution warrants the type of pattern that we see in
judicial review that it is inclined to support the national coalition. As they are also selected
through a political process i.e. nomination by the president and confirmation by the Senate. And,
although federal judges serve for life terms, mortality means that there is a reasonably regular
turnover in the Supreme Court’s membership. This nomination and confirmation process is
political to the very ground. At times presidents will calculate how nominating one person will
appeal to political interest groups, it is very clear that the president is concerned about how the
nomination will affect his or her political standing with important constituencies. At times
senators will defer to a president’s choices and at times they will vigorously interrogate the
nominee. In both cases the senators are concerned about how their behavior will play with their
constituents.

The effect is to bring judicial review into alignment with politics elsewhere. The very structure
of judicial review in the United States thrusts the “Who benefits” question to the fore. More
generally: Judicial review is an institution designed to help us run a good government.

In U.S. the Supreme Court is likely to fit in with the national political majority, with something
of a time lag. So, for example, by the 1960s the New Deal political coalition had controlled
national politics for so long that the Supreme Court’s justices were simply another part of that
coalition. And by the 1990s the transformation of American politics that began with Richard
Nixon’s presidency and extended through the Reagan-Bush years and, to many, into the Clinton
years produced a Supreme Court whose moderate centrism corresponded almost precisely to the
national centre of political gravity.

In fact, hostile opposition forces were able to completely neutralize the Court's seemingly
ground-breaking ruling in Brown v. Board of Education in the first decade after the decision;
moreover, the limited progress made after the ruling was due to a shift in political forces that had
everything to do with the changing economic role of African- Americans and their own extra-
legal activism and little or nothing to do with the Supreme Court.

In this context, Rosenberg argues that to ask courts to produce significant social reform is to
forget their history and ignore their constraints. It is to cloud our vision with a naive and
romantic belief in the triumph of rights over politics. And while romance and even naivete have
their charms, they are not best exhibited in court rooms. All this means that judicial review is
likely simply to reinforce whatever a political movement can get outside the courts.
 How Unwritten Constitution Norms Change Written Constitution – Richard Albert

(Readings + Class notes including for CA 3 and End Term)

There are various ways to change a constitution and it can also change informally. Informal
change occurs where enforceable meaning of constitution changes without altering the
constitutional text. For instance, judicial interpretation is one such method, there are others
including legislative enactment and executive action.

It is not that unusual for written constitution to change informally. Constitution exists outside of
its four corners of text. The study of constitutional change simply cannot escape the reality that
constitutions are never written, neither in one single place nor in entirety.

How unwritten constitutional norms interact and sometimes informally alter written
constitutions – Informal changes are inevitable, and Hans Kelsen alluded to same when he
insisted that ‘there is no legal possibility of preventing a constitution from being modified by way
of custom, even if the constitution has the character of statutory law, if it is so called written
constitution’. Kelsen by custom meant constitutional convention in our terms, a rule that creates
an obligation, confers rights or powers, or otherwise governs the conduct of political actors.

A convention may be said to exist only where we perceive and identify more than mere practice;
it requires political actors to conform their conduct to that practice because they believe that they
ought to do so. A constitutional convention develops, as Ivor Jennings explained, where there are
precedents, where political actors feel themselves bound by the precedent, and where there is a
reason to respect the precedent. The key to the Jennings test and in fact to the existence of a
constitutional convention is what political actors think, feel and eventually do.

In master-text constitutional democracies, conventions create a rule that compels political actors
to act in a way that is not mandated by the constitutional text. We must as a result look outside
the constitutional text to identify constitutional conventions. Conventions therefore often if not
always create discontinuities of varying gravity between text and practice. The most grave occurs
where a convention creates a rule obliging political actors to act'in a way other than what the
formal law prescribes or allows'.

Constitutional conventions can modify the meaning, though not the formal text, of written
constitutions. Richard Albert hypothesise two major methods. First, a convention may
incorporate something new into the text of the constitution without resulting in a new writing.
Second, a convention can do the opposite: it can informally repudiate, though not formally
repeal, something that is currently written in the text.
Incorporation – It may occur by filling an existing void in the constitutional text, where the
subject-matter of the convention that fills the void is not presently addressed in the text.
Incorporation may also occur by refinement where the subject-matter of the convention that
refines the existing constitutional text is in some way already addressed in the text.

Repudiation, on the other hand, may occur in two ways. Repudiation may occur where a
convention creates a void in the constitutional text by effectively disabling a provision
entrenched in the constitutional text. Repudiation may also occur by substitution where a
convention plainly contradicts the written constitution.

Each of these four types of informal change entails its own costs for the democratic rule of law
values served by a written constitution, namely predictability, transparency and accountability. It
is important to state at the outset that these pairs of distinctions void-filling and refinement, void-
creation and substitution - are intended to be exploratory, not definitive.

One could plausibly claim that there are only two large categories of informal change by
constitutional convention - incorporation and repudiation - because any distinction more specific
than that is too fine to withstand scrutiny. One could alternatively argue there is only one all-
encompassing form of informal change by constitutional convention - change itself - and that any
further distinctions are forced at best. For instance, one could claim that the incorporation of a
new constitutional convention into a constitution entails the repudiation of the existing
convention to the extent it conflicts with the new one, just as one could claim that the repudiation
of an existing constitutional convention results from the incorporation of a new convention into
the constitution.

INCORPORATION

Constitutional conventions may also change written constitutions, though only informally, by
creating, retarding or accelerating constitutional change, all without altering the text. Even most
codified constitution is incomplete. They cannot fully reflect all of constitution level laws. There
are many reasons why – some statutes may become so important that they achieve quasi
constitutional status. As said by Richard Albert, once a constitution has been set up, and then
almost inevitably conventions will arise to supplement and put into practical effect the express
provisions of written constitutions.

How does a constitutional convention ‘will arise to supplement’ the written constitution –

Incorporation by Void Filling - One way is by outright addition: a convention can supplement
the written constitution where the subject matter of convention is not already addressed in the
constitutional text, thereby filling a void in the existing constitutional text.
Example – A example of incorporation by void filling is two term presidential convention in
USA. The US constitution was silent on question of presidential re-eligibility and re-election
when it came into force in 1789. The Constitution only established that president shall hold his
office during the term of four years. In 1951, political actors amended the constitution to
formally entrench the two-term limit in Twenty-Second Amendment. Origins of this amendment
can be traced back to first president George Washington, who retired in 1796 after serving two
terms, his successors followed his example, they so strongly entrenched his two term model that
House of Representative passed a resolution that 'precedent established by Washington and other
presidents of the United States, in retiring from the presidential office after their second term, has
become, by universal concurrence, a part of our republican system of government'.

This two-term convention illustrates void-filling. The Constitution's silence on presidential re-
eligibility and re-election created space for the convention to take root.

Incorporation by Refinement - In contrast to void-filling - where the subject-matter of the

conventional change is not presently addressed in the constitutional text - refinement occurs
where the subject-matter of the conventional change is already addressed in it. In refining the
text, the convention adds to it or specifies something new about our understanding of its existing
wording, though in neither case does the refinement create an inconsistency with a plain reading
of the text.

Example - In Canada, the norm of provincial consent on major constitutional amendments took
root where the subject-matter was already addressed in the constitutional text. Prior to adopting
the escalating structure of formal amendment rules in Constitution Act, 1982, there were two
amendment rules, one explicit and the other implicit: a province could amend its own
constitution, and only the Parliament of the United Kingdom could amend the Constitution of
Canada on matters affecting exclusively the federal government or on those implicating both
provincial and federal interests. The UK later formally amended the Constitution of Canada to
introduce symmetry between federal and provincial amendment powers. The amendment granted
the Parliament of Canada the analogous amendment power as to the purely federal matters in the
federal constitution as provinces had been granted by the Constitution Act 1867as to the purely
provincial matters in their own constitutions. A convention developed over time to refine the
formal rule that the authority to amend Canadian federal-provincial matters belonged exclusively
to the United Kingdom. In a landmark judgment in 1981 on the patriation of the Constitution of
Canada, the Supreme Court of Canada expressly recognised the existence of this convention
requiring substantial provincial consent for major formal amendments affecting provincial and
federal interests. The convention of substantial provincial consent supplemented the existing rule
on how to formally amend matters of federal-provincial concern. In their dialogic interactions
over a number of decades, political actors created a practice that ultimately matured into a
convention. That convention refined an existing rule that had, until then, admitted of no
ambiguity: the Parliament of the United Kingdom possessed the authority to formally amend the
Constitution of Canada on federal-provincial relations.
 The vast body of established parliamentary practices, including the rules of parliamentary
procedure, do not necessarily have the status of convention. In order to distinguish political
practice from constitutional convention, we must return to the Jennings test, which counsels not
only that a convention exists where there is precedent and where political actors feel bound to the
precedent but also where there is a reason for the rule established by the precedent.

REPUDIATION

Informal change by repudiation occurs where a textually entrenched provision is undermined or

replaced by a new political practice that has matured into a constitutional convention. The effect
of this convention approximates a formal amendment insofar as political actors perceive it as
binding and conform their conduct to it.

Void Creation - A constitutional convention can functionally remove, though not formally
repeal, something from a written constitution and leave a void in its place. Where a textually
entrenched provision loses its binding quality as a result of its non-use and sustained public
repudiation by political actors, this provision may be understood as having been informally
removed from the text. Informal constitutional change by void-creation occurs where, as with
constitutional desuetude, a 'constitutional reordering occurs informally as a result of the
sustained non-use of an entrenched constitutional provision' and that provision is 'expressly
repudiated by political actors' after which 'a new constitutional rule replaces the repudiated rule
and thereafter sets the standard for future conduct by political actors. This new standard
'exercises a binding effect that approximates a formal constitutional rule' because 'political actors
self-consciously follow the new standard, believing themselves bound by it. Subsequently, this
new constitutional rule 'permeates the elite conventional understanding of the constitution' even
though, importantly, 'the repudiated rule remains textually entrenched''.

Repudiation by void-creation requires that the 'new standard' be an outright negation of the
entrenched provision. What therefore results from repudiation by void-creation is the unwritten
deletion of a textual provision.

Example – In Canada the Constitution Act 1867 grants the federal government the power to
'reserve' or 'disallow' provincial legislation. Under reservation power, Lieutenant Governor of
province may reserve a bill that has been passed by a provincial legislature. Under disallowance
power, federal government may repeal a provincial law within one year of its adoption by a
provincial legislature. Neither power has been used for at least 50 years, both have been
expressly repudiated by political actors as well as academic commentators, yet both powers
remain today entrenched in the constitutional text, concealing their contemporary illegitimacy
and their political toxicity.

Repudiation by void-creation compels a political actor to refrain from acting in a way the
constitutional text authorises, but repudiation by substitution authorises a political actor to act in
a way the constitutional text prohibits. Repudiation by void-creation creates a void in the text
where none existed. Political actors may have once validly possessed the power to act in a way
the text authorized but now, as a result of a convention prohibiting the use of that power,
political actors may no longer choose that course. In contrast, repudiation by substitution
authorises political actors to do something that will be in direct contradiction of the constitutional
text. In both cases, the key is discretion. In the case of repudiation by void-creation, political
actors no longer enjoy the discretion to invoke an entrenched provision, but in the case of
repudiation by substitution, political actors come to enjoy the discretion to do the opposite of
what the constitutional text requires. I discuss repudiation by substitution in the following
section.

Substitution - A constitutional convention can also contradict the written constitution. In

contrast to repudiation by void-creation - where an entrenched constitutional provision loses its
binding quality and effectively expires from the text though it remains textually present -
repudiation by substitution goes further than negating the entrenched constitutional text: it
creates a conflicting duty, power, obligation or other rule. Repudiation by substitution occurs
where a convention emerges as a result of a political practice that conflicts with a rule entrenched
in the constitutional text. This informal constitutional change effectively substitutes a written
constitutional provision with an unwritten political practice that defies the plain meaning of the
constitutional text.

Example – A decision by SC of USA that first amendment prevents congress from imposing
electoral spending restrictions on corporations could be classified as an example of incorporation
by refinement-in this case incorporating the new restriction into the meaning of the First
Amendment.

For example, in the United States, the Contract Clause and the Treaty Clause have been
contradicted by political practices that now authorize the opposite of what the constitutional text
requires in its plain meaning. The Contract Clause, whose text admits of no exceptions when it
strictly prohibits states from impairing the obligation of contract, now permits state intrusions
into contracts. Since the depression era, when the Supreme Court first approved this practice as a
narrow emergency measure, states have continued to act in direct conflict with the text.

An additional example: the treaty-making power confers upon the president the power, by and
with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators
present concur...'.Yet in the modern era it has become common practice for the president to
bypass Senate confirmation by entering into sole-executive agreements that achieve the same
functional ends as treaties. The Supreme Court has effectively approved this practice, refusing to
rule that sole-executive agreements circumvent the constitutional requirement of Senate consent.

These are examples of informal change as a result of repudiation by substitution where an

unwritten political practice matures into a constitutional convention that is inconsistent with the
text.

Convention or Informal Constitutional Change and Rule of Law

What counts as constitution and how do we interpret it? It is obviously incorrect to say
constitution is what appears in master text. For example in US constitution, includes unwritten
component which consists of customs and practices as well as their underlying values and
principles. The unwritten developments are as explained by John Carter, neither expressly nor
intentionally made but they instead arise out of the confluence of actions by multiple actors over
time. They are constitutional and yet do not appear in text.

Congruence between Constitutional text and Political Practice

Political actors often make changes to furnishing of constitutional framework, by formally

adding or removing part of text in formal amendment, but these changes are to constitution, not
of constitution itself. The question whether a change involves a mere furnishing or something
more basic to the constitution such that a change to it would fundamentally rework its entire
framework is a matter of both interpretation and design.

Drafters cannot freeze their preferred meaning of constitutional law across time neither formal
unamendability, and nor with constructive unamendability. The effort to freeze time raises the
'dead hand' problem in constitutional law, which in turn creates a democratic deficit as to the
successor generations.

On current view, point of departure is the meaning of the text in the period in which it is read by
a reasonable reader who is subject to its constraints and compulsions. Reasonable readers of the
constitutional text should not perceive a dissonance between what the text says and how political
actors conduct themselves, or how the authoritative interpreter of the text understands the text to
bind the governed and their governors. Such dissonance risks undermining the rule of law and
the democratic values it is intended to serve.

Reading the text as would a reasonable reader who is subject to it therefore privileges its present
public meaning. There is a threat to the rule of law where a text meant to be authoritative is no
longer relevant or recognizable to those it governs.
As Ginsburg suggests, the disjunction between text and reality may become less problematic
over time in a mature constitutional democracy. But it remains exceptionally problematic in
nations trying to create a new culture of constitutionalism.

The principal function of a codified constitution, then, wrote Chief Justice Marshall in Marbury
v Madison, decided in the early years of the new American republic, is to 'establish certain limits
not to be transcended' by the institutions of government. All institutions of government,
including courts, 'are bound by that instrument’ whose very foundation and essential core is that
the constitution itself is superior, paramount and unchangeable by ordinary means. This suggests
a basic norm of democratic government that doubles as a best practice for master-text
constitutional regimes: text and practice should be consistent absent extraordinary reasons.

The centrality of congruence to the rule of law therefore makes it uncontroversial to state that a
defining principle of the rule of law is that 'political power may not be exercised except
according to procedures and constraints prescribed by laws which are publicly known'.

The rule of law of course does not require writtenness. The rule of law exists and indeed often
thrives in jurisdictions without a codified constitution. But a codified constitution, as Marshall
well understood, can help promote the rule of law's democratic values of transparency,
accountability and predictability. Writtenness appealed to Marshall because it facilitated the
judicial task of evaluating the constitutionality of conduct against the standard set by the
constitutional text. But whether conduct satisfies the strictures of the text is only one part of the
interrelationship between text and practice.

Informal Constitutional Change by Constitutional Convention

Unwritten constitutional norms can and do co-exist with writtenness in a mastertext regime. But
the relationship becomes problematic for the rule of law where an unwritten constitutional norm
neither supports nor supplements the written constitution but instead supplants it. The four forms
of informal change by constitutional convention highlight incongruities between constitutional
text and practice that pose threats of different degrees to the rule of law. Each of the four forms
of informal constitutional change by constitutional convention can be plotted along a linear scale
of congruence between text and practice, where perfect congruence represents optimal
conformity with the rule of law and perfect non-congruence reflects its outright violation.

On this scale, from highest to lowest congruence between the constitutional text and political
practice, the four forms may be ordered as follows: incorporation by void-filling at the highest
level of congruence, though far from the perfect congruence of a clear text and consistent
practice; repudiation by substitution at the lowest level of congruence; and incorporation by
refinement and repudiation by voidcreation usually somewhere in between, though determining
which is more or less congruent with the rule of law depends on the nature of the actual
convention.
In finding the ownership disincentive unconstitutional, the majority highlighted the conditions
that undermine transparency, predictability and accountability, the same conditions that may
guide us in evaluating whether the disjunction between text and practice is problematic for a
reasonable reader of a constitutional text. As the Court explained, where the federal government
forces states to regulate, as it had sought to do with this law, 'the accountability of both and
federal officials is diminished.’ - [W]here the Federal Government directs the States to regulate,
it may be state officials who will bear the brunt of public disapproval, while the federal officials
who devised the regulatory program may remain insulated from the electoral ramifications of
their decision. Accountability is thus diminished when, due to federal coercion, elected state
officials cannot regulate in accordance with the views of the local electorate in matters not
preempted by federal regulation.

The Supreme Court of the United States isolated the nub of the matter in New York v United
States, a case concerning the Low-Level Radioactive Waste Policy Amendments Act of 1985.

Void filling - Here, the meaning of the codified constitution changes as a result of the informal
entrenchment of a constitutional convention that fills a gap in the text. For example two term of
president convention, which was ultimately proposed and ratified as a formal amendment in
1951 but it had become functionally binding well before its textual entrenchment. But where the
text establishes no relevant requirement or standard, there is little ground to argue that the rule of
law is compromised by the emergence of a constitutional convention requiring or precluding
certain conduct. Where the text establishes no relevant requirement or standard, there is little
ground to argue that the rule of law is compromised by the emergence of a constitutional
convention requiring or precluding certain conduct.

Repudiation - In contrast, informal change as a result of repudiation by substitution is an outright

violation of the rule of law values of transparency, accountability and predictability. Substitution
creates a direct conflict between text and practice. Consider the context in repudiation by
substitution: the text entrenches a right, commands an action or forbids some particular conduct
but political actors nonetheless deny the right to refuse their duty or to engage in expressly
prohibited conduct. This substitution of an unwritten rule for a written one undermines the very
purpose of the text where we understand its function as setting.

It is not clear as an abstract matter which of either incorporation by refinement or repudiation by

void-creation is less consonant with the democratic values of the rule of law. The case of
repudiation by void-creation can likewise be either tolerable or not depending on the nature of
the affected constitutional text - and indeed it could in some cases be as intolerable for the rule of
law as repudiation by substitution. In all cases of repudiation by void-creation, the textual
referent remains but it becomes ineffective as a matter of convention. But one kind of void is
more serious than the other: the existence of a void in the text is more problematic where the
affected text confers upon a political actor an official power that has effectively lapsed as a result
of its non-use and where no viable functional alternative subsequently emerges to fill its role
than where a convention has disabled an official power whose purpose has been functionally
replaced by another power that is now commonly used in the ordinary course of political
practice. The latter creates a void in the text but also produces a remedy to fill the functional hole
in the text.

For example - the national convention procedure to formally amend the United States
Constitution under Article V has never once been successfully used since the adoption of the
Constitution. The procedure authorises two thirds of states to petition Congress to call a
convention and three-quarters of states to ratify the amendment proposals arising out of the
convention. One could plausibly suggest that the provision had expired as a result of its nonuse.
Still, the historical prevalence of the congressionally initiated procedure to formally amend the
Constitution - which has been used 27 times thus far - would suggest that the functional purpose
of the national convention procedure remained achievable in other ways.

Conclusion

The argument that there is only one all-encompassing category of informal constitutional change
by convention - conventional change itself - would proceed as follows. Where a practice matures
into a constitutional convention and becomes binding on political actors, the new convention
must necessarily displace the existing understanding of the thing about which the displaced
understanding existed. For example, as to our example of incorporation by void-filling, the
argument would be that the presidential two-term convention replaced the contemporaneous
understanding that there existed no limit to re-eligibility or re-election. On this view, it would be
incorrect to claim that there had existed a void in the text on re-eligibility or re-election. The
claim would instead be that the drafters of the master-text constitution had chosen intentionally
to leave out of the text any mention of limits because they intended there to be none.

This perspective would lead us to one conclusion: all cases of informal change by constitutional
convention are illustrations of repudiation by substitution. On this view, in every case - whether
the presidential two-term convention, the informal entrenchment of the convention on substantial
provincial consent, the desuetude of the disallowance and reservation powers, or the new
meaning of the Contracts or Treaty Clauses - the prevailing understanding of the constitution has
been displaced by a new, now dominant interpretation of the constitution, and it now governs the
conduct of political actors and public expectations until that understanding is itself replaced by a
new one. There would be no distinction among the four forms of informal constitutional change
because, at their core, they would each be understood to reflect the creation of a new convention.

Examples –
How to evade convention – In Canada government decide to incorporate some measure, so
opposition cannot voice their concern. They decide to remove public subsidy for political parties,
opposition party went for no confidence motion. Ruling party knew they might fail and called
upon General to prorogate the council, to delay the vote.

Convention in India - India, despite its thorough constitutional text relies heavily on
Constitutional Conventions practiced in the UK. A study of the Constituent Assembly Debates
reflects that attempts to codify certain concerns e.g. the relationship between President/Governor
with their respective Councils though raised were later dropped when it came to their
incorporation in the final constitution.

The Indian Constitution does not leave it upon conventions to govern the entire domain of
parliamentary governance and instead codifies several of them. An illustration could be the
explicit adoption of the British convention on ‘Collective Responsibility’ which is a cornerstone
of the Westminster model in Article 75(3) of the Indian Constitution.

Again, the otherwise settled convention on the bindingness of the ministerial advise on the
President received explicit constitutional recognition vide the 42 nd Constitutional Amendment
Act, 1976. (Shamsher Singh v State of Punjab).

The Convention followed in India that Courts cannot question the exercise of political power in a
court of law was an expressly recognized in the Constitution.

On the other hand, several other areas were left open to be governed by conventions namely,
manner of appointing Prime Ministers, principles of proving collective responsibility,
discretionary powers of State Governors to name a few.

One of the oft-cited examples of constitutional convention in India is the seniority convention
adopted in India as the Constitution is silent on the criteria for appointing Chief Justices to the
Supreme Court of India. However, if we were to trace the origin of the seniority convention
in establishing a consistent trajectory would be difficult.

Through a series of cases, the Indian Supreme Court established a convention that a Collegium
of judges comprising the Chief Justice and four senior most judges shall be responsible for
appointing judges in India. In India, the collegium system arose out of judicial decisions that
interpreted ‘consultation’ as ‘concurrence’ under Article 124 of the Constitution though literally
both do not have the same connotation. Such interpretation led to the formation of a collegium of
judges circumventing the Constitutional requirement of executive appointment.

Vote of no confidence – Convention

Australia - Like Canada, the Australian constitutional system essentially relies on conventions
transplanted from Britain. The founders of the Commonwealth Constitution almost incontestably
agreed on the adoption of the Westminster way of parliamentary governance. None of the
conventions ranging from maintaining the majority in the House of Representatives, appointing
the leader of the majority to form a government, binding nature of the ministerial advise on the
Governor-General were explicitly incorporated into the 1901 Constitution.