Examining Unamendability in Constitutional Democracies
This volume emerges from the papers, discussions, and debates featured at that Workshop. We have divided this collection into two major parts. The first comprises four chapters under the heading “The Forms and Limits of Unamendability”.
The chapters in this part explore and evaluate the legitimacy of unamendability in the various forms they exist in constitutional democracies. The second part investigates “Unamendability in Constitutional Democracies”, with case studies of unamendability in countries across the globe, with special attention to Asia, Europe, the Middle East as well as comparative perspectives from the United States.Part I begins with a Yaniv Roznai’s chapter on “Necrocracy or Democracy? Assessing Objections to Constitutional Unamendability”. Roznai begins by observing that unamendability is a growing trend in global constitutionalism. Yet, as he observes, unamendability, as a constitutional mechanism raises various challenges and objections. He identifies theoretical challenges (that it imposes the dead hand of the past), practical objections (that it encourages extra-constitutional change, it exerts a limited effect, and that it confers vast powers on the judiciary) as well as textual concerns (that implicit unamendability has no textual referent). He argues that we can mitigate the challenges of unamendability if we construe it as a mechanism that reserves constitutional space for “the people” in their capacity as holders of the primary constituent power to decide their own fate.
In his chapter on “A Constitution for Eternity: An Economic Theory of Explicit Unamendability”, Konstantinos Pilpilidis takes a law-and-economics approach to unamendability. He presses the question how to justify the use of unamendability, recognizing that no constitution is ever truly eternal. Pilpilidis offers a novel typology of constitutional eternity, suggesting that the only plausible benefit of unamendability in rational choice theory is that it makes constitutional political rents redistribution proof.
As is evident from Pilpilidis’ chapter, the institutional economics literature offers a new perspective to assess the impact of unamendability and to evaluate rent distribution and rent extraction. To our knowledge, this is the first law-and-economics analysis into unamendability that offers a test to justify it.In their chapter on “Conventions of Unamendability: Covert Constitutional Unamendability in (Two) Politically Enforced Constitutions”, Gert Jan Geertjes and Jerfi Uzman highlight a little-noticed form of unamendability that does not emerge from the formal design of master-text constitutions but rather from constitutions like United Kingdom’s. They suggest that conventions of unamendability in politically enforced constitutions can arise from judicial disobedience, and in turn approximate the kinds of unamendability we see in master-text constitutions.
Stephan Michel and Ignacio Cofone offer a counterpoint in their chapter titled “Credible Commitment or Paternalism? The Case of Unamendability”. They evaluate the functional value of unamendable provisions as commitment devices and in turn present a provocative theory of paternalism in constitutional design, arguing that unamendability is problematic in the face of changing preferences over time and the risk of abuse by constitutional drafters.
The subsequent chapters comprise Part II. We begin in India, the site of the creation of the basic structure doctrine, which the Court may invoke to invalidate a duly passed constitutional amendment for violating unwritten limits to constitutional change, those limits being identified by the reviewing court itself. In his chapter on “Constitutional Falsehoods: The Fourth Judges Case and the Basic Structure Doctrine in India”, Chintan Chandrachud asks what impact does India’s acclaimed “basic structure” doctrine have on the text of the Constitution? He observes that constitutional theorists have long neglected this question in favour of debates surrounding the implications of the doctrine of separation of powers, popular sovereignty, and the role of the judiciary in a constitutional democracy.
Over the years, the Indian Supreme Court has struck down multiple provisions of the Constitution on basic structure grounds. These provisions have formally remained part of the text, producing constitutional falsehoods—significant disjunctures between text and practice. By considerably extending the contours of the basic structure doctrine, the Indian Supreme Court’s decision in the Fourth Judges Case exacerbates the potential for these falsehoods. This chapter considers how these falsehoods have arisen, the attempts to redress them, and what they mean for constitutional interpretation outside of the courts.Mazen Masri then shifts our attention to Israel in his chapter on “Unamendability in Israel: A Critical Perspective”. Israel does not have a master-text constitution but, argues Masri, it entrenches two forms of unamendability. He calls the first “concealed unamendability,” which makes certain amendments impossible without a favorable political configuration in the Knesset. He refers to the second as “judicially introduced unwritten unamendability.” In both cases, he argues, unamendability seeks to protect Israel’s definition as a Jewish and democratic state.
In his chapter on “Eternal Provisions in the Bangladeshi Constitution: A ‘Constitution Once and For All’?”, Ridwanul Hoque uncovers an important development in constitutional law: unlike most jurisdictions that have adopted the basic structure as a result of judicial interpretation, Bangladesh has amended its constitution to provide that the “basic provisions of the Constitution” shall be unamendable. This raises a special problem for the basic structure doctrine because, unlike other jurisdictions, here the decision to make something unamendable is clothed in the sociological legitimacy of the constitutional amendment process itself.
In her chapter on “Unamendability as a judicial discovery? Inductive learning lessons from Hungary”, Fruzsina Gardos-Orosz asks a fundamental question that constitutional designers must ask themselves today: is it possible to create a stable constitutional democracy with a completely flexible basic law that does not entrench something against amendment? Beginning with the Norwegian Constitution, which entrenched the spirit of the constitution against amendment, Gardos-Orosz proceeds to trace the rise of amendability as a “judicial discovery,” developing a case study of Hungary.
Gardos-Orosz seeks to justify the judge-made doctrine of unamendability in the absence of explicit eternity clauses. She conceptualizes unamendability as an implicit normative principle that can be deduced from the very nature of liberal constitutionalism.Serkan Koyba^i brings us to Germany in his chapter on “Amending the Unamendable: The Case of Article 20 of the German Basic Law”. The German Basic Law entrenches what is perhaps the most well-known eternity clause, making human dignity inviolable. Koyba^i focuses our attention on a 1968 amendment to Article 20 in the German Basic Law. Article 20 is formally unamendable and dates to the 1949 Basic Law. Koyba^i asks whether the amendment—which purports to incorporate the right to resistance into Article 20—may be properly viewed as unamendable in the same way as the amended article had itself been prior to its amendment.
What follows are a pair of inquiries into the Turkish Constitution. In “Debating Unamendability: Deadlock in Turkey’s Constitution-Making Process”, Oya Yegen diagnoses the challenges facing the Constitutional Conciliation Commission of Turkey in 2011, one of which was the question of unamendability. In debating the content of a new constitution for Turkey, the Commission reached an impasse on whether the new constitution should retain its current unamendable provisions or break with this tradition. With close attention to the debates in the Commission, Yegen shows that the parties held irreconcilable positions with respect to unamendability, and that this contributed to the breakdown of the negotiations on constitutional reform. And in “The Unamendability of Amendable Clauses: The Case of the Turkish Constitution”, Tank Olcay draws from Carl Schmitt’s theory of constitutionalism to illustrate how and why the Turkish Constitutional Court has exercised substantive constitutional review of constitutional amendments under three different constitutional settings.
In his chapter on “The Unamendability of Amendable Clauses The Case of the Turkish Constitution”, Juliano Zaiden Benvindo explores unamendability in Latin America, what he describes as a “contradictory concept” given that formal constitutional change has long been a natural feature of constitutionalism in the region.
As he explains, although the amendment rate varies significantly among its countries and the pace of constitutional replacements has waned in recent years, Latin America has long been portrayed as a region where amendment or replacement is a common occurrence. Zaiden Benvindo notes, however, that the comparative constitutional literature has practically overlooked most Latin American constitutional realities, calling into question the convention view that Latin America is home to inherently unstable constitutionalism. He focuses on Brazil but draws lessons from elsewhere in the region.The volume closes with a broader view of Europe. In “Unamendable Constitutional Provisions and the European Common Constitutional Heritage: A Comparison Among Three Waves of Constitutionalism”, Valentina Rita Scotti probes the unamendable provisions in post-war Germany and Italy, in Romania and the Czech Republic after the fall of the Wall, and most recently in Morocco and Tunisia after Arab Spring. She sets out to trace the common European heritage through all cases, each occurring in a different era of constitutionalism.
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