The Duality of Formal Amendment Rules

Formal amendment rules hold the key to making or unmaking a constitution.^[11] Political actors have used these rules to divest courts of their powers, to guarantee equality for all persons under law, to abolish term limits for chief executives, and to restructure legislative powers from a bicameral to a unicameral system.

This duality of formal amendment rules—their availability for both good and ill —presents a challenge for constitutionalism: the rules of change are indispensable for the functioning of constitutional democracy, yet they open the door to the demise of constitutional democracy itself. How, then, can we protect constitutional democracy from the misuse of its own devices?

Constitutional designers have turned to one solution with increasing frequency: formal unamendability. A formally unamendable provision is “impervious to the constitutional amendment procedures enshrined within a constitutional text and immune to constitutional change even by the most compelling legislative and popular majorities.”^[14] Constitutional designers entrench unamendable provisions for many different purposes but in most cases intend them “to last forever and to serve as an eternal constraint on the state and its citizens,”^[15] hence the phrase eternity clause that some scholars have used to describe them.^[16]

Formal unamendability was once rare but today it is a near-global norm in the modern era of constitutionalism.

Constitutional democracies sometimes recognize the existence of unamend­ability even where nothing is entrenched as unamendable in the constitutional text. In these jurisdictions, unamendability becomes informally entrenched as a result of a binding declaration by the authoritative interpreter of the constitution that something in the constitution is inviolable. In virtually all cases, it is a court that declares the existence of an informally unamendable norm. Courts thereafter acquire the power to invalidate any contrary action, law or formal amendment. These informal restrictions rest on the fusion of two roles that have traditionally been separated across time and institutions: constitutional author and constitutional interpreter.

Judges have deployed the doctrine of informal unamendability to defend their constitution from what they regard as attacks on the constitution itself.^{[32] [33] The doctrine has been effective in cases where the other branches of government have laid down their arms and acquiesced to this extraordinary assertion of judicial power. The doctrine has been much less effective—destructive even—where judges have manipulated the doctrine to the advantage of political actors to whom they are partial, as we recently saw in Honduras in a glaring example of its problematic}

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misuse.

There are many more layers of complexity to the design and interpretation of unamendability, whether formal or informal. In this introduction to An Unamendable Constitution? Unamendability in Constitutional Democracies, we begin by classifying the forms of unamendability. We distinguish not only between formal and informal unamendability but also between substantive and procedural forms of formal and informal unamendability. We moreover add another dimension to our analysis: time. Some forms of unamendability are temporally limited and others are not temporally bound. We also raise the possibility that unamendability may reflect a hybrid form that combines substantive with procedural protections. Our discussion of the forms of unamendability leads us to our thematic overview of the major lines of inquiry that await readers in this first-of-its-kind scholarly col­lection on unamendability—arguably the most fascinating design feature of modern constitutions.

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