Albert on Multi-Textual Constitutions @RichardAlbert

Richard Albert, University of Texas at Austin, School of Law, Department of Government; Yale University; University of Toronto, Faculty of Law; São Paulo Law School of Fundação Getulio Vargas FGV DIREITO SP; University of Ottawa, Faculty of Law; Universidad Externado de Colombia, Facultad de Derecho; Interdisciplinary Center (IDC) Herzliyah, Radzyner School of Law; Universidad de Especialidades Espíritu Santo; Airlangga University; Maharashtra National Law University Mumbai, is publishing Multi-Textual Constitutions in volume 109 of the Virginia Law Review. Here is the abstract.

Imagine the U.S. Constitution were a collection of several equally supreme constitutional documents rather than one single supreme constitutional document? In this alternative universe, speaking of “the Constitution” would no longer refer only to the official text written in 1787. It would now refer both to that document and to other official texts enacted and popularly recognized as comprising the essential documents of “the U.S. Constitution,” perhaps including the Declaration of Independence, the Emancipation Proclamation, and the Northwest Ordinance. This constitutional counterfactual opens our eyes to a long-standing error that has distorted our understanding of the constitutions of the world. Here is the problem: we have forever believed that constitutions come in two forms: “written” and “unwritten.” But this pervasive and omnipresent distinction is both incorrect and misleading. It is incorrect because all constitutions are in some way written, and it is misleading because all constitutions consist of unwritten rules. What is more, this traditional distinction between “written” and “unwritten” constitutions obscures a profound difference among written constitutions themselves. Some “written” constitutions—like the U.S. Constitution—consist of a single, supreme constitutional document of higher law while others consist of multiple constitutional documents with shared supremacy under law. Ubiquitous but unnoticed, constitutions comprising multiple texts are a unique constitutional form that has yet to be studied and theorized. I call them multi-textual constitutions. In this Article, I offer the first comprehensive introduction to multi-textuality. My purpose is to explain, illustrate, and theorize the design and operation of multi-textual constitutions with reference to current and historical constitutions all around the world. I show how they may be created both by design and evolution. I explain their strengths in relation to how they may improve constitution-making, open new avenues for constitutional innovation and flexibility, and forestall the onset of constitutional veneration. I moreover identify some of the problems they raise in law and society: the difficulty of constitutional identification, the challenge of constitutional obsolescence, and the conundrum of constitutional conflict. What results is the first scholarly inquiry into multi-textuality, a deep analytical dive into this distinct constitutional form, and a fascinating counterfactual question: what would change in the operation of the U.S. Constitution if it were a multi-textual constitution consisting of several documents of equal legal force?

Download the article from SSRN at the link.