Structural constitutional rules resist change despite eroding functional justification

Evidence

The rule includes or encompasses instances that the background justification behind the rule would not cover, as in the Kirby and Church of the Holy Trinity cases, as with the driver driving safely at 70, and as with an ambulance which might fall within the literal scope of the “no vehicles in the park” rule. In such cases the reach of a rule is broader than the reach of its background justification, and so we say that the rule is overinclusive. — Frederick Schauer, Thinking Like a Lawyer, 46 (#expands, via linked claim)

Using the Constitution as a subversive object is one thing. Being limited by it is quite another. Ambedkar’s circumstances forced him to be a revolutionary and to simultaneously put his foot in the door of the establishment whenever he got a chance to. His genius lay in his ability to use both these aspects of himself nimbly, and to great effect. Viewed through the prism of the present, however, it has meant that he left behind a dual and sometimes confusing legacy: Ambedkar the Radical, and Ambedkar the Father of the Indian Constitution. Constitutionalism can come in the way of revolution. And the Dalit revolution has not happened yet. We still await it. Before that there cannot be any other, not in India. — Ambedkar, B R, Annihilation of Caste_ The Annotated…, 104 (#qualifies, via linked claim)

In addressing a Prussian audience in 1862, Lassalle said: The constitutional questions are in the first instance not questions of right but questions of might. The actual constitution of a country has its existence only in the actual condition of force which exists in the country: hence political constitutions have value and permanence only when they accurately express those conditions of forces which exist in practice within a society. — Ambedkar, B R, Annihilation of Caste_ The Annotated…, 839 (#complicates, via linked claim)

Categorization

• XREF: connects to: Functional political entrenchment works without changing formal legal rules — Daryl Levinson and Benjamin I. Sachs, Political Entrenchment and Public Law, 173; Formal constitutionalism can obstruct rather than advance revolutionary change — Ambedkar, B R, Annihilation of Caste_ The Annotated…, 104; Constitutions only endure when they reflect actual social power relations — Ambedkar, B R, Annihilation of Caste_ The Annotated…, 839 (+6 more)

Related

• Formal constitutionalism can obstruct rather than advance revolutionary change (similarity 0.82)

Broader Connections

• Rules necessarily overreach their justifications because of their intrinsic generality #expands (0.85) — Frederick Schauer, Thinking Like a Lawyer, 46
• Formal constitutionalism can obstruct rather than advance revolutionary change #qualifies (0.82) — Ambedkar, B R, Annihilation of Caste_ The Annotated…, 104
• Constitutions only endure when they reflect actual social power relations #complicates (0.80) — Ambedkar, B R, Annihilation of Caste_ The Annotated…, 839
• Formalism disguises the need for judicial choice by freezing rule meaning #expands (0.78) — HLA Hart, The Concept of Law (Clarendon Law…, 370