Quasi-constitutional change without intent: A response to Richard Albert

Recently, Buffalo Law Review published Richard Albert’s article on “quasi-constitutional amendments.” These are, in Albert’s words, “sub-constitutional changes that do not possess the same legal status as a constitutional amendment, that are formally susceptible to statutory repeal or revision, but that may achieve constitutional status over time as a result of their subject-matter.” In this essay, I respond to Albert’s illustration and understanding of this of this phenomenon. The central point I make concerns Albert’s insistence on quasi-constitutional amendments being the result of a “self-conscious” effort to circumvent “onerous rules of formal amendment” in order to alter the operation of a set of existing norms in the constitution. I argue that a truly comprehensive theory of quasi-constitutional amendments – or of the broader phenomenon of informal constitutional change - is also able to account for constitutional change that is caused by facts not accompanied by a (demonstrable) intent or awareness of the change on the part of constitutional actors. Recognizing such change, which I refer to as “silent constitutional change,” has implications for the way we should describe processes of constitutional development and explain why constitutional change does not always come about through the “front door” of a formal constitutional amendment procedure.