Four Themes

There are four themes running through this volume. The first concerns the problem of dead hand control: unamendable provisions privilege the past over the present insofar as they insulate the constitutional preferences of yesterday against change by the current generation.

Another view appears in chapters by Koyba^i and Scotti. Here, we see strong arguments in favor of unamendability for rights protection. For Koyba^i, modern constitutional democracy rejects simple majoritarianism, and if it has not yet done so it should. The core of constitutional democracy, he argues, is the principle of limitation: limits on government, limits on the exercise of official power, and limits on what simple majorities can do. The implication of Koyba^i’s position is that unamendability is a profitable device where it serves this limitation principle.

Roznai’s chapter illustrates a third view that we might identify as meta-democratic: unamendability is not democratic when considered at a low level of abstraction—after all, it prevents amending actors from changing the constitution —but we must regard unamendability as the very embodiment of democracy because it is intended to safeguard the people’s constitution from amendments made by their representatives without the people’s authorization. On this view, una­mendability does not deny the people their power of changing their constitution how they wish or indeed whenever they wish but it requires the people to mobilize as popular sovereigns to make clear that those constitutional changes are ones they recognize and accept as valid. The people’s representatives cannot act in the people’s name to make constitutional changes that violate the people’s constitution without first securing the people’s permission. In this way, an unamendable constitutional provision is democratic, Roznai argues, because it establishes the people’s prefer­ences at the writing of the constitution and it prevents the people’s representatives from making changes to those preferences until and unless the people agree. This approach endeavors to strike a balance between democracy and constitutionalism.

In his chapter, Zaiden Benvindo takes an altogether different view: that a court can use unamendable provisions to expand its own powers, either gradually or quickly, but in either case definitively. Zaiden Benvindo draws predominantly from Brazil but also from Colombia to suggest that courts can interpret unamendability in strategic ways to enhance their powers, to insulate themselves from coordinate branches, and to give constitutional rules new meaning.

The problem of dead hand control derives from a second theme that we might describe as the related problem of sovereignty identification. Who is sovereign and how can the sovereign exercise its powers? This question of sovereignty engages the distinction between the constituent and constituted powers; the former refers to “the people” in whom ultimate power resides and the latter refers to the branches of government given delegated authority to carry out the commands of the former. The sociological construction of constituent power was developed in the French Revolutionary era by Emmanuel Joseph Sieyes, whose writings proposed a strict division of powers between the omnipotent pouvoir constituant and the subservient pouvoir constitue.^[93]

In our present context of constitutional unamendability, the debate pits those who accept the theory of constituent power versus those who reject it. Adherents of the theory argue that unamendability is a proper constraint on the constituted powers, for instance, the legislative branch, and that only the constituent power may validly exercise the power to both establish and abrogate unamendability. The contrary view rejects constituent power theory as a legal fiction that does not accurately reflect how constitutions are designed or how they are changed insofar as “the people” do not actually write or authorize constitutions, though they do of course sometimes ratify constitutions by referendum. On this view, constituent power theory is but a normative aspiration for how constitutions should be written not how they are actually written.

In their chapters, Roznai and Koyba^i root their arguments against an unlimited amendment power in constituent power theory. Constituted powers, they argue, cannot override unamendable provisions because those provisions were authorized by the constituent power, which exercised its constitution-making power to entrench those provisions to begin with.

The implication of constituent power theory is that constituted powers cannot entrench provisions against amendment because this authority belongs only to the constituent power. And yet, as Hoque explains in his chapter, the Bangladeshi legislature exercised what the dominant view defines as a constituted power to amend the Constitution to entrench a lengthy catalogue of provisions as una­mendable. The question, then, is whether this eternity clause should be regarded as truly eternal since it was introduced by a constituted power and not directly authorized by the constituent power, meaning the people, in Bangladesh. Or, alternatively, whether this exercise of constituted power was an illegitimate expansion of the limited powers of the legislature.

Yegen’s chapter raises another important challenge to the dominant view. Yegen brings us back to the period 2011-13, when the Constitutional Conciliation Commission of Turkey made a serious effort to change the Constitution. The Commission was an ad hoc body that did not have a legal basis either in the Constitution or in the rules of parliamentary procedure. Yet this was not the reason for its failure. In its modern history, Turkey has relied on such commissions on more than one occasion, finding success on big packages promoting democratization and Europeanization, in sharp contrast to the failure of the 2011-13 Commission.^[94] The Commission broke down in the face of disagreement about whether the body could validly exercise constituent power, in which case it would have the authority to remake the entire Constitution and reconsider the unamendable provisions entren­ched in it, or whether the body was bound in what it could do as merely a constituted power, in which case the body could only amend the Constitution in line with the existing constitutional structure, meaning that the unamendable rules could not be changed.

Indeed, Michel and Cofone suggest in their chapter that constituent power theory is just that—a theory. An unconstitutional constitutional amendment remains pos­sible where the amending actors act in breach of the limits imposed on them by the theory. In these cases, there is no effective way to prevent an unconstitutional constitutional amendment, unless there is some entity authorized to police the exercise of the amendment power or, if no authorization is given in the text or in political practice, some entity nonetheless willing to assert the power of review.

The answer, of course, is the judiciary. Courts have increasingly exercised the power to review the constitutionality of constitutional amendments. This leads us to the third theme in this collection: the problem of judicial review. What implications do unamendability entail for courts, and how should courts adjudicate a claim of unamendability? We must approach these questions along two separate but related tracks: one where the constitution expressly entrenches a rule against amendment and another where the constitution makes nothing unamendable.

Where the constitution makes something unamendable, that unamendable pro­vision requires interpretation, explication, and delimitation. We might argue that courts are well positioned to play this role. Indeed, the Turkish Constitutional Court has historically interpreted the Constitution’s unamendable provisions in this way, as Olcay shows in his chapter. But Olcay has shown that this power entails con­sequences for the rest of the Constitution: the Court has interpreted the remainder in light of the formally unamendable provisions, in some cases declaring unconsti­tutional otherwise valid constitutional amendments for affecting in some way the unamendable matters even where there is no direct violation.

The bigger controversy arises where a constitution makes nothing expressly unamendable. We have seen courts declare that the constitution makes implicitly unamendable certain rules and principles in which judges believe the constitution is rooted. In her chapter, Gardos-Orosz demonstrates how the Hungarian Constitutional Court has arrived at the conclusion that the Constitution incorporates implicitly unamendable values that constitutional amendments must meet in order to be valid, even if those amendments are procedurally perfect. The Court’s role is to defend the “basic founding principles of the rule of law,” as Gardos-Orosz describes them. Similarly, in his chapter on India, Chandrachud traces the emer­gence of the basic structure doctrine from meta-principles identified by the Indian Supreme Court. Chandrachud explains that in the years since the creation of the doctrine, Indian courts have deployed the doctrine as a shield to protect the inde­pendence of the judiciary. Surely this principle is worth defending in a constitu­tional democracy committed to the separation of powers and liberal constitutionalism.

This is a matter of some controversy because implicit unamendability is the result of what we might describe in neutral terms as a “judicial discovery.” A more skeptical description might be “judicial constitution-making”—a concept that runs contrary to our conventional Lockean understanding insofar as constitutions ought to spring from the consent of the governed. But even as a judicial discovery, the content of implicit unamendability hinges on what courts regard as fundamental in a given constitutional jurisdiction. Whether courts define the basic constitutional structure as implicitly unamendable as in India, or the spirit of the constitution as has historically been the case in Turkey or certain fundamental constitutional principles in Hungary, a common thread reappears: courts are the ones to decide what counts as a trump card.

In both of these scenarios—explicit and implicit unamendability—the focus is on courts. But in their chapter, Geertjes and Uzman show that similar forces develop in politically rather than legally enforced constitutional orders. Geertjes and Uzman draw our attention to jurisdictions like the United Kingdom or the Netherlands where they have identified a phenomenon they call “covert una­mendability.” Unlike in legal constitutional orders that are court-centric in their interpretation and enforcement of the constitution, in political constitutional orders like these it is Parliament that largely if not exclusively determines the content of the constitution as a final matter. Faced with a virtually omnipotent legislature, courts in these jurisdictions have been intentionally “deaf” to legislative actions that might be invalid in a legal constitutional order but that courts here cannot invalidate because of the rule of legislative primacy. What Geertjes and Uzman have observed these courts do instead is fascinating: since courts cannot strike down a parlia­mentary act, they interpret the legislation creatively through deafness or outright disobedience—even constitution-level legislation—to make them constitutionally benign. Geertjes and Uzman therefore make an important discovery of their own: just like legally enforced constitutional orders that have identified implicitly una­mendable rules, politically enforced constitutions also recognize fundamental rules in which their regime is anchored. In both cases, the integrity of the constitutional order requires respect for these unwritten rules.

The fourth theme evident across the chapters is the problem of constitutional endurance. Constitutional democracy requires some measure of flexibility and some measure of rigidity. Striking the balance between both, however, may be elusive. On the one hand, a constitution that is too flexible undermines its role as a guarantor of predictability and stability in governance. On the other, a constitution that is too rigid risks provoking its own violation out of necessity. In our context, the question is whether unamendability enhances or hinders constitutional stability: is a con­stitution more or less likely to endure when its designers entrench a rule against amendment?

In his important chapter on the law-and-economics of unamendability, Pilpilidis observes that the practical realities of absolute entrenchment lead to less than optimal outcomes for a constitutional state. Faced with a formally unamendable rule that limits their range of available choices, political actors or interest groups may violate the constitution if some significant benefit would accrue to them. Unamendability, then, may induce instability in the constitutional order. Michel and Cofone marshal some data reinforcing Pilpilidis’ analysis: supermajority constitu­tional amendment rules, they suggest, offer greater prospects for constitutional longevity than unamendability. As Roznai explains, unamendability can undermine stability not only by preventing constitutional changes but moreover by leaving political actors driven to make a prohibited change with no choice but to resort to extra-constitutional means. Here, then, is the paradox of unamendability: it may well be intended to foster stability and endurance but in reality it might provoke the demise of the very constitution it seeks to shield from change.

There is no clear answer, however, on whether unamendability enhances or hinders stability, not to mention whether this should be the ultimate constitutional value to which we aspire. Zaiden Benvindo shows us that unamendability is not necessarily a bar to constitutional change where a court sees its role as transfor­mative and exercises its power to that end. Koyba^i finds favor in the unamendable rules in the German Basic Law for setting a clear barrier to the country’s decline into dictatorship; unamendability on its own of course cannot stop a country’s decent but it does establish a public benchmark that sets a standard for all to see. Gardos-Orosz takes a similar view of unamendability, arguing that unamendable norms can serve to instill a set of shared commitments and in so doing create a more stable political culture. Yet, Scotti stresses that the opposite of unamendability— easy amendability—was one point of origin of the great horrors the world witnessed in the days of the Weimar Republic, though of course unamendability itself could not have prevented the rise to power of the Nazi regime.

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