On Constitutional Dismemberment

Abstract

This article provides a critical examination of Richard Albert’s “constitutional dismemberment” doctrine. After reconstructing the four theses this concept entails—one conceptual, one descriptive, and two normative—the article shows this notion's contribution to describing constitutional changes that alter the basic structure without breaking legal continuity or collapsing into abusive constitutionalism. It then sets out seven objections. At the conceptual level, it questions the negative connotation of the term “dismemberment” and the claim of value-neutral analysis, drawing on Dworkin’s idea of the inevitability of normative judgments. At the normative level, it critiques the “rule of symmetry” and the constituent power theory underpinning it, arguing that they overvalue legal continuity and permit democratically deficient dismemberments. Finally, it proposes an alternative standard for judicial review of structural changes, grounded in the protection of the essential elements of democratic constitutionalism and in the degree to which the requirements of deliberative democracy are met.