The Transnational Human Rights Review

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English Abstract

The amendment mechanisms contained within the Australian and United States Constitutions, being Section 128 and Article V respectively, have many structural similarities. Both amendment mechanisms are purposed towards protecting federalism insofar as they require the achievement of more than just a simple constituent majority before a referendum proposal will succeed. In fact, the entrenchment of the Australian and United States ‘double’ and ‘super’ majority requirements respectively were specifically included as a protection for the federal distribution of power originally mandated within the Constitutions of each. Building upon that framework, if the Australian and American constitutional amendment mechanisms are purposed towards protecting federalism, what happens if neither can achieve their purpose and, thus, are ‘hyper-rigid’? The consequence of hyper-rigidity within an amendment mechanism itself often is that Courts will step in to make decisions about fundamental constitutional matters, such as those with respect to the division of federal power, which would otherwise be put to the people of a constituency. This article explores claims about amendment mechanism hyper-rigidity before addressing the issue of how the Australian and United States amendment mechanisms can be reformed to afford these Constitutions the degree of amendability necessary for the respective countries to act within an increasingly centralised world, without altering the nature and distribution of federal power allocated within each.

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