Abstract
Unamendability is a growing trend in global constitutionalism. Yet, unamendability, as a constitutional mechanism, raises various challenges and objections. Mainly, by perpetuating certain constitutional rules, values and institutions, unamendability exacerbates the ‘dead hand’ of the past, and by restricting all constitutional possibilities available to the people to revise their constitution, unamendability is seen as undemocratic and dangerous as it encourages extra-constitutional and revolutionary means in over to modify unamendable principles.
Furthermore, the judicial enforcement of unamendability grants courts vast powers over other governmental branches, turning the judiciary into the final arbitrator of society’s values. This chapter identifies and analyses the main theoretical, practical and textual challenges to unamendability. It demonstrates that unamendability is a complex mechanism which ought to be applied with great care. Yet, it also argues that if the theory of unamendability is correctly construed as a mechanism which reserves a constitutional space for the decision-making of ‘the people’ in their capacity as holders of the primary constituent power (in contrast with the limited amendment power), this mitigates many of the challenges raised by unamendability.An earlier version of this chapter was presented at the Ko?-BC-Icon-S Workshop on Unamendable Constitutional Provisions held at Ko? University Law School on 9 June 2015. I would like to thank the organisers of the workshop—Bertil Emrah Oder and Richard Albert and the participants for their valuable comments, especially to Serkan Koyba^i for his discussion. I would also like to thank Martin Loughlin, Thomas Poole, Ida Koivisto and the anonymous reviewer for useful remarks. An elaborated argument appears in Yaniv Roznai, Unconstitutional Constitutional Amendment—The Limits of Amendment Powers (OUP 2017).
Y. Roznai (&)
Radzyner School of Law, Interdisciplinary Center (IDC), Herzliya, Israel e-mail: yaniv.roznai@idc.ac.il
© Springer International Publishing AG, part of Springer Nature 2018
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R. Albert and B. E. Oder (eds.), An Unamendable Constitution?
Ius Gentium: Comparative Perspectives on Law and Justice 68, https://doi.org/10.1007/978-3-319-95141-6_2
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