LAU44037 CONSTITUTIONAL CHANGE AND AMENDMENT

Learning Outcomes

Having successfully completed this module, students should be able to:

• Demonstrate specialised, self-directed knowledge of an area of law through examination of a ‘real-life’ legal research problem or a theme within a research group.
• Collaborate with peers and act in leadership roles.
• Constructively evaluate the work of others.
• Synthesise and evaluate a variety of legal research methods, legal sources, findings and analysis.
• Critically analyse an area of law through independent research.
• Consult with and respond to the needs of research users.
• Effectively communicate research findings.

Module Content

Constitutions can be changed in all manner of ways. In some cases, constitutions explicitly provide for their own amendment and set certain procedures for doing so. In other cases, constitutional law is changed through more ad-hoc procedures or even implicitly through judicial decisions. The manner in which change is effected speaks to fundamental concepts underlying the constitution like democracy, constitutionalism, the proper role of the courts, and the place of ‘the People’. Constitutional change is a controversial topic and adopting a position in the debate involves balancing important principles against each other. Students are encouraged to wade into this debate and offer insights into what constitutional change means, what the most appropriate method of amendment is, and what limits (if any) should be placed on amendment.

This group provides students with an opportunity to explore themes of constitutional change, understood broadly. Some indicative themes include:

• Methods of constitutional amendment, e.g. referendums
• Constitutional ‘unamendability’ and limits on amendments, e.g. the basic structures doctrine
• The role of the Courts in constitutional change, e.g. living constitutionalism or originalism
• Constitutional change and populism or majoritarianism
• Democracy and constitutional change
• Should constitutions change in-step with societal changes?
• Constitutional entrenchment: how difficult should it be to amend a constitution?
• Constitutional change and the separation of powers
• Innovations in constitutional amendments, e.g. Citizens’ Assemblies

Suggested Reading List

• Richard Albert, Constitutional Amendments: Making, Breaking, and Changing Constitutions (OUP 2019)
• Cahill, Ó Cinnéide, Ó Conaill, and O’Mahony (eds), Constitutional Change and Popular Sovereignty: Populism, Politics and the Law in Ireland (Routledge 2021)
• Aileen Kavanagh, ‘The Idea of a Living Constitution’ (2003) 16 Canadian Journal of Law and Jurisprudence 55
• Aileen Kavanagh, ‘Unconstitutional Constitutional Amendments from Irish Free State to Irish Republic’ in Eoin Carolan (ed), The Constitution of Ireland: Perspectives and Prospects (Bloomsbury Professional 2012)
• David Kenny, ‘How to Lose a Referendum (in Ireland) – Challenges of Practical and Symbolic Constitutional Change’ (2025) 3 Comparative Constitutional Studies 1
• Leah Trueblood, ‘Are Referendums Directly Democratic?’ (2020) 40 Oxford Journal of Legal Studies 425
• Jeremy Waldron, ‘Five to Four: Why Do Bare Majorities Rule on Courts?’ (2013-2014) 123 Yale Law Journal 1626

Assessment Details

• Individual Project: 85%
• Group Presentation: 15%
• Reflective Journal: Pass/Fail
• Participation: Pass/Fail