Constitutional Amendment and the Role of the Courts
This short survey of the different forms of constitutional unamendability reveals mainly examples drawn from jurisdictions that have some kind of strong-form judicial constitutional review of legislation.[406] This is unsurprising.
Most literature on the subject tends to focus on systems where there is a bold judicial culture of reviewing either legislation or even the political process as such. The classic examples come either from countries such as Germany, Turkey and South Africa— where there exists a constitutional court—or from India, the United States or Brazil, countries where the ordinary judiciary, headed by a Supreme Court, assumes the power of reviewing parliamentary legislation.[407] Although it is theoretically conceivable for a jurisdiction to recognize judicial review of the constitutionality of amendments without recognizing judicial constitutional review of statutes, in practice the former is always connected to the latter.[408] One might even say that, in terms of the role of the courts, amendment review is a form of judicial review of statutes ‘plus’.[409] In the same vein, one may conceptually distinguish between unamendability of the constitution on the one hand, and judicial oversight of limitations to the powers of amendment on the other.[410] But again, it is submitted that this distinction in practice is relatively modest.[411] In any case, legal literature regularly seems to assume the close link between unamendability on the one hand and judicial review on the other.This strong emphasis on (quasi-)constitutional court litigation poses problems for constitutions, like the British or the Dutch, which contemplate a rather modest role for the courts in enforcing the constitution. This modesty is not necessarily connected to the judicial power to engage in rights review.
Both British and Dutch courts engage in rights review of legislation, be it not on the basis of a national bill of rights but of the European Convention on Human Rights (ECHR).[412] Nor is the fact that UK courts lack the power to invalidate primary legislation and have relatively weak remedial powers conclusive as such. It is conceptually possible for a legal system to have a court which is, or considers itself, empowered to review the constitutionality of constitutional amendments, but which cannot itself remedy a possible violation. What unites both systems, however, is their dependency, in large areas of their respective constitutions, on political actors to enforce it. We may call these ‘politically enforced constitutions’, as opposed to judicially enforced constitutions.Nevertheless, this raises the question how this ‘judicial modesty’ should be defined. If we are to make a distinction between judicially and politically enforced constitutions, we are in need of criteria demarcating one from the other. That is no easy task. It should be noted at the outset that the classification of a particular constitution as either one of these poles is not as clear-cut as it would seem. Few systems, if any at all, are either totally politically or judicially enforced. Even in the most classic example of a legal system featuring judicial supremacy there are at least some areas in which there is no significant judicial interference. Equally, the growing judicialization of politics worldwide has affected jurisdictions that, until quite recently, adhered to legislative supremacy.[413] It is far more likely that any given legal system is at best leaning towards either one of the judicial and political poles. Moreover, any classification based on a single decisive constitutional feature, such as the distinction between weak-form and strong-form systems of judicial review, is likely to fall short.[414] Rather, this classification depends on a range of historical and cultural factors affecting judicial attitudes and powers.
Nevertheless, it would be useful to identify a limited set of defining features which may indicate the likelihood of judicial interference with the constitutional amendment power.So what is essentially characteristic of politically enforced constitutions? It seems to us that courts in this kind of jurisdiction are traditionally reluctant to view the constitution as ‘law’ but rather see it as a set of political values and rules.[415] Although they can play a role in protecting these values, for instance where individual rights are concerned, they do not regard themselves designated to determine the meaning of the constitution.[416] This does not mean, of course, that it would be unthinkable for courts to express their opinion on a constitutional matter. However, it is commonplace in the ‘ideal’ politically enforced constitution to assume that it is in the first place up to Parliament to determine its content. Compare this to the approach taken by the US Supreme Court, in which it has repeatedly stressed that it is ultimately for the Court to define the meaning of the Constitution.[417] Similarly, the Federal Constitutional Court in Germany usually assumes that its own interpretations of the Grundgesetz are the final say on the matter.[418]
The idea that the courts play a vital role in shaping the constitution also manifests in the willingness of courts to enforce the constitution within the political arena itself. As we said before, there are areas in which the constitution is not usually enforced by the courts, either because the need for judicial interference simply does not arise or because these areas are considered to be non-justiciable.[419] Yet, there are, even here, occasions in which the courts do interfere. This is particularly the case in jurisdictions blessed with a Kelsenian constitutional court. The German Bundesverfassungsgericht, for instance, frequently hears complaints that go to the heart of the political process.
Illustrative is its ruling on whether the outcome of a vote in the Bundesrat was determined constitutionally.[420] Neither did the Court hesitate to decide on the constitutionality of a parliamentary vote of no confidence against the Federal Chancellor.[421] One could argue that such judicial boldness stems from the idea that, even within the core of the political system, it is for the Court to decide on the content of constitutional rules. But this way of thinking is not confined to the original Kelsenian constitutional court system. It is perfectly imaginable for a Supreme Court to assume the role of political umpire. In 1969, the US Supreme Court, in Powell v. McCormack, ruled on the authority of Congress to deny a member-elect, who had been subject to public scandals, his seat in the House.[422] The Court rejected the argument that this was a political question. Although the Constitution expressly allocated the assessment of the Members qualifications to Congress, the Court interpreted ‘qualifications’ narrowly. According to the Court, this exclusive role only applied to the qualifications enumerated in the Constitution itself. Exclusion on any other ground was beyond Congressional authority. This judgment in many ways reveals the Court’s conception of its role as ultimate guardian of the Constitution. As Terrance Sandalow remarked only shortly after the judgment:Throughout, the opinion reflects a conception of the Court as the ultimate interpreter and defender of the Constitution. In Marbury v. Madison, the power of the Court to declare Congressional legislation unconstitutional was justified as a necessary incident of the Court’s duty to decide cases in conformity to law, including the Constitution as the “supreme law”. Powell demonstrates how far the Court has moved from that rationale. [...] The determination of constitutional questions becomes not merely an incident of the exercise of judicial power, but a reason for it.[423]
This is not to say that the US Supreme Court does not, in any way, recognize political questions.[424] The striking difference with politically enforced constitutions is, however, that the latter’s legal tradition makes it virtually unimaginable for a court to hear these cases.
Until now, we have been focusing on the different manifestations of judicial supremacy. We do not claim, however, that any jurisdiction in which the courts are considered to have the authoritative say on constitutional meaning is also susceptible to constitutional unamendability either in its procedural or its substantive form. The US example makes this clear. Although the Court clearly considers itself supreme, it has, in the past, rejected substantive challenges to several Amendments.[425] In doing so it appears to have refused to recognize the concept of substantive unamendability, although it might be more willing to accept its procedural sister.[426] There are many factors that influence a court’s decision whether or not to embrace a particular version of unamendability. Certainly, not the least of those factors appear to be the degree of difficulty in amending the Constitution.[427] The fact remains, however, that politically enforced constitutions differ from their judicially enforced counterparts in the sense that they seem to offer far less potential for courts to engage in a direct confrontation with the political branches over issues of constitutional change. Let us now turn to a brief description of two of such constitutional systems.
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