Foundational Questions in Modern Constitutionalism
Both formal and informal unamendability invite questions that strike at the core of constitutionalism. Unamendability in either form urges us to contemplate the relationship between the constituting powers of self-government and its constituted institutions, the relationship between constitutionalism and democracy, and the function of text in law.
Are unamendable constitutional provisions undemocratic or do they reflect a deep respect for the true democratic foundations of constitutionalism? What are the functions, limits, uses, and abuses of unamendability in modern constitutions? What are the optimal conditions under which unamendable constitutional provisions, constitutions, or norms achieve the intent of their designers? What circumstances frustrate their intended purposes? These are foundational questions in constitutionalism, and now made more urgent by the prevalence of unamendability.Despite the importance of unamendability, there remains a void in the literature. To this day, we lack a systematic and comprehensive inquiry on the subject that is attentive to the comparative, doctrinal, empirical, historical, and theoretical dimensions of unamendability. Scholarship in comparative public law tends largely to focus on the interpretation and construction of rights and liberties, the design of federalism, the allocation of powers, the tools and strategies for ensuring judicial independence, and on the forms of popular participation in constitutional-making. What makes the void all the more glaring is that unamendability engages with each of these important subjects—each one reflected in some form or implication of constitutional unamendability. To be sure, there exists important scholarship on constitutional unamendability. One of the first efforts to survey the universe of unamendability was Kemal Gozler’s study of the judicial review of constitutional amendments.[89] Schwartzberg’s Democracy and Legal Change is an important book that takes a historical and comparative perspective on a particular view of unamendability, namely, that it fails to satisfy the democracy principle.[90] The alternative perspective is perhaps stated most compellingly by Sudhir Krishnaswamy, whose book defends the invalidation of constitutional amendments in India.[91] The most recent book on the subject is the best one: Yaniv Roznai’s magisterial study of unconstitutional amendments.[92]
And yet the subject of constitutional unamendability lacks a focal resource that can serve as a point of reference for scholars interested in its deepest questions, from no single national perspective or from any particular view of the merit of unamendability. This is the void we seek to fill.
In June 2015, public law scholars from around the world gathered in Istanbul at Ko^ University for an intensive Workshop on unamendable constitutional provisions. The purpose of the gathering was to map the field of unamendability with a view to publishing a volume that would serve as a major first point of reference on the subject. The Workshop featured participants from Bangladesh, Canada, Israel, Germany, Hungary, India, Indonesia, Italy, the Netherlands, Scotland, Turkey, the United Kingdom, and the United States. These jurisdictions are some of the most important in defining the subject of unamendability. The Workshop was sponsored jointly by Ko^ University Law School and Boston College Law School, held under the auspices of International Society of Public Law, and convened by the Editors of this volume.9
More on the topic Foundational Questions in Modern Constitutionalism:
- Abstract
- Theorising the Founding
- A Basic Understanding of Constitutionalism
- The legitimacy grounds of constitutional supremacy
- Narratives on public mobilization and participation
- Three Moments of Reconfiguration
- UNITED KINGDOM DEVOLUTION IN HISTORICAL PERSPECTIVE
- The core ambiguity of modern Islamic constitutionalism: the scope and authority of human-made legislation
- Notes
- FRENCH CONSTITUTIONALISM