Substantive Unamendability
Unamendable provisions sometimes impose substantive restrictions on what is amendable. These restrictions concern the content or subject matter of a constitutional rule. For example, a rule that divests political actors of the power to amend a provision guaranteeing republican government, secularism, or federalism represents a substantive restriction on the amending power.
Each of these three examples— unamendable republicanism, secularism, and federalism—is a substantive restriction because it defines what may not be amended. Identifying what is unamendable is only part of the inquiry into substantive unamendability. We must also inquire how these substantive restrictions arise to begin with. There are two possibilities: they may be formally entrenched in the constitutional text or they may emerge informally.Formal substantive unamendability refers to subject matter unamendability codified in the text of the constitution. For example, under the Italian and French Constitutions, respectively, “the republican form [of the state] cannot be a matter of constitutional amendment”[41] and “the republican form of government cannot be the object of an amendment.”[42] This is a straightforward form of unamendability because it is written down for all to see.
Although nothing in the United States Constitution is today formally unamendable, the Constitution entrenches two expired examples of formal substantive unamendability. The United States Constitution entrenches a now-expired temporary form of formal unamendability in the following clause of its amendment rule in Article V: “Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article.”[43] The first and fourth clauses of Article I, Section 9 were formally unamendable from the moment of the coming-into-force of the Constitution in 1789 until the year 1808. Article I, Section 9, Clause 1 authorizes states to move and import slaves, and Article 1, Section 9, Clause 4 guarantees that taxation would be census-based.[44] Both clauses formed part of the Constitution’s institutionalized framework for the protection of slavery.[45] These two formally unamendable provisions were necessary for the slave states to approve and ratify the Constitution. The authors of the Constitution entrenched these protections as temporarily unamendable until the year 1808 with the objective of later returning to the subject in twenty years to reconsider it “with less difficulty and greater coolness.”[46]
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