Introduction

The role of constitutional unamendability is at the center of a long-lasting debate, which became evident during the drafting of the U.S. Constitution. Thomas Jefferson affirmed that each generation should have the right to choose its own Constitution,¹ while James Madison thought that frequently recurring to people might reduce the authority of the government and its role in providing stability.² The latter position seemed to succeed and, henceforward, constitutional framers

¹On the possible objection to unamendability, see, in this book, the contribution of Yaniv Rosnai, ‘Necrocracy or Democracy? Assessing Objections to Formal Unamendability’.

²On the U.S. debate, see Sunstein (2009), pp. 1-16.

V. R. Scotti (&)

Department of Political Science, LUISS University of Rome, Rome, Italy e-mail: vrscotti1@gmail.com

© Springer International Publishing AG, part of Springer Nature 2018 365

R. Albert and B. E. Oder (eds.), An Unamendable Constitution?

Ius Gentium: Comparative Perspectives on Law and Justice 68, https://doi.org/10.1007/978-3-319-95141-6_14 from all over the world have progressively defined specific extraordinary proce­dures for constitutional amendment, whose complexity varies from one constitution to another.^[1474] Some constitutional provisions, however, are considered unamendable.

This idea of unamendability was consolidated for the first time in France, when the 1875 Constitutional Law introduced Article 8, Section 3, and made the repub­lican form of government unamendable. Since then, and through the different waves of constitutionalism,^[1475] constitutional framers have considered some principles fun­damental for the social pact constitutions represent^[1476] and have, thus, explicitly deemed these principles as perpetual.

Meanwhile, the power to adapt and vivify the constitutional culture resides in the hands of judges,^[1480] which are called to interpret the provisions on unamendability.^[1481]

In some cases, judges safeguard core constitutional values by affirming the existence of implicit limits to amendability. These implicit limits are derived from rights and principles that existed before constituent moments,^[1482] which Charters merely recognize, and from a “basic structure”^[1483] of the Constitution.

These core principles have also been recognized at the supranational level. In Europe, for instance, they have taken the form of a constitutional common ground, namely, the European Common Constitutional Heritage. The Council of Europe’s soft power and the European Union’s conditionality have led this Heritage to cross European borders and become a debated element in the Southern Mediterranean area, particularly during the constitution-making processes started in 2011. There, the European Heritage mingled with the Islamic and African ones, each codified in specific Charters and through supranational organizations,^[1484] making the compar­ison between unamendable provisions even more interesting.

Following an expressive perspective,^[1485] this essay will analyze the relationship between the European Common Constitutional Heritage and the unamendable clauses provided by national constitutions in different constitutional waves. This essay is divided into three parts. The first discusses Italy and Germany’s post-World War II constitutional experiences. The second part discusses the postcommunist Constitutions of Romania and the Czech Republic. Finally, the third part of this essay discusses the Constitutions approved after the so-called Arab Spring in Tunisia and Morocco, which are examples of the aforementioned cross-border influence of the European Heritage. Some concluding remarks try to answer the following questions: Does the entrenchment of values through unamendable con­stitutional provisions change from one wave of constitutionalism to another? Does judicial interpretation modify the understanding of constitutional values? Does the European Common Constitutional Heritage influence the definition of values entrenched through unamendable provisions?

2