Procedural Unamendability

Constitutional provisions may also be unamendable in procedural terms. Whereas substantive unamendability entrenches a constitutional provision against formal amendment by reference to the content or subject matter of the provision, proce­dural unamendability likewise entrenches a constitutional provision against formal amendment but does so by reference to the process of formal amendment itself.

Formal procedural unamendability refers to procedural unamendability codified in the constitutional text. For instance, the Mexican Constitution effectively makes itself unamendable in the event of rebellion leading to its violation, suspension or replacement: “This Constitution shall not lose its force and effect even if its observance is interrupted by rebellion. In the event that a government whose principles are contrary to those that are sanctioned herein should become estab­lished as a result of a public disturbance, as soon as the people recover their liberty, its observance shall be reestablished, and those who had taken part in the gov­ernment emanating from the rebellion, as well as those who cooperated with such persons, shall be judged in accordance with this Constitution and the laws that have been enacted by virtue thereof.”^[81] This illustrates formal procedural unamendability insofar as the restriction on formal amendment—prohibiting formal amendment in connection with rebellion—is codified in the constitutional text. Of course, the enforceability and effectiveness of this provision is another matter altogether.

The second type of procedural unamendability—informal procedural una­mendability—results from the political process. Informal procedural unamend­ability develops where the procedures required by a formal amendment rule are so onerous that political actors cannot realistically (though they could theoretically) meet the amendment threshold. It reflects procedural unamendability arising informally from the dialogic interactions of political actors, in contrast to the textually commanded unamendability that characterizes formal procedural una­mendability. The Articles of Confederation illustrate informal procedural una­mendability: the 13 states could theoretically satisfy the demanding unanimity threshold for formally amending the Articles,^[82] but in practice, it was not possible for them to fulfill those procedures.^[83]

7