Introduction
Constitutional unamendability refers to the limitation on amending constitutional subjects (provisions, principles, rules, symbols or institutions) through the formal constitutional amendment provision.[95] In that sense, such constitutional subjects carry a certain ‘supra-constitutional’ status.[96] Unamendability may be explicit in the constitution, in the form of ‘eternity clauses’ or ‘provisions of unamendability’.[97] Unamendability may also be implicit as result of courts interpretation of the constitutional text, holding that even in the absence of explicit limitations, certain constitutional principles are implicitly unamendable.[98] There is a growing trend in global constitutionalism not only to impose limitations on the constitutional amendment power but also to enforce this unamendability by means of substantive judicial review of constitutional amendments.[99]
I have argued that constitutional unamendability and its judicial enforcement rest on the fundamental distinction between primary constituent (constitution-making) power and secondary constituent (constitution-amending) power, and are in accordance with the nature and scope of amendment powers, understood as limited delegated powers.
As a delegated power acting as a secondary constituent power, the amendment power cannot destroy the constitution and replace it with a new one since this is the role of the primary constituent power, conceived as the people’s democratic appearance of popular sovereignty through which the people may establish and reshape the political order and its fundamental principles.[100] Of course, if one takes the view that primary and secondary constituent powers are similar types of powers, this argument in favour of unamendability is weakened. For example, in the U.S. context, it was argued by Stephen Griffin that once the U.S. Constitution was established, the constitutional amendment procedure contains constituent power.[101] Yet, since the amendment power is merely a power established in the constitution and delegated to constitutional organs, it cannot be a genuine constituent power which carries extra-constitutional features. It is still a constituent power, in the sense that it has the capacity to create and modify constitutional norms, yet it is an inherently limited capacity. The idea that ‘the people’ have delegated amendment powers to constitutional organs yet in turn retain their primary constituent power is acceptable by some eminent American Scholars such as Akhil Reed Amar and William Harris II.[102]Nevertheless, constitutional unamendability and its judicial enforcement raise many complications and objections on various grounds. Richard Albert, for example, argues that unamendability undermines the basic promise of democratic constitutionalism since it restricts the constitutional possibilities open to the people governed by the constitution.[103] Unamendability, he further argued, ‘hijack[s] their most basic of all democratic rights’.[104] Additionally, unamendability confers upon courts vast powers in vis-a-vis other governmental branches.[105]
This chapter aims to identify the main objections to the theory of unamendability and analyse them. Section 2 analyses the theoretical challenges to unamendability: the idea that unamendability exacerbates the ‘dead hand’ challenge of constitutionalism by which past generations bind current and future generations; the argument that courts—as organs created by the constitution and subordinated to it —cannot decide upon the validity of constitutional norm; and finally, that unamendability and its judicial enforcement are undemocratic. Section 3 is dedicated to practical objections to unamendability: the claims that unamendability encourages extra-constitutional and forcible changes or that unamendability has a limited effect; and that from an institutional perspective, unamendability enhances judiciary’s power over other governmental branches, turning it into the final arbitrator of society’s values.
Section 4 confronts textual challenges to unamendability, according to which the absence of explicit provisions to the contrary, the textual meaning of ‘amendment’ allows any change to the constitution and that in light of the maxim expressio unius est exclusio alterius, there should be no inference of implicit unamendability aside to those limits which are explicitly stated in the constitutional text. Section 5 concludes.The analysis demonstrates that unamendability is a powerful mechanism which carries with it serious consequences to the constitutional order. Therefore, it should be used with great care. Nonetheless, notwithstanding these challenges, the exploration reveals that the distinction between the primary and secondary constituent power—correctly construed—manages to mitigate many of the difficulties associated with unamendability.
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