The Meaning and Significance of Unamenable Constitutional Provisions

The idea that certain constitutional principles or certain provisions of the consti­tution are unamendable is neither new nor rare.^[695] Despite its ubiquity, it raises serious theoretical and practical questions related to democracy.

Any discussion of unamendability is essentially a discussion of a special kind of constitutional amendment rules. In addition to their functional role (i.e. amending the constitution to reflect political and social change, and to address any problems or shortcomings),^[698] constitutional amendment rules have an essential expressive purpose.^[699] As Richard Albert notes, ‘amendment rules are one of the sites where constitutional designers may express a polity’s constitutional values, both to the persons who are nominally or actually bound by its terms, and externally to the larger world.’^[700] While this expressive function is part of the general expressive function of constitutions,^[701] amendment rules also help identify the hierarchy among the different constitutional values depending on the level of difficulty of adopting an amendment.^[702]

The expressive function goes beyond identifying the constitutional principles. The combination of the expressive function with the fact that amendments are the main vehicle for changing the constitutional text help in identifying the most fundamental foundations of the state, and the ultimate location and holder of political power. Albert Venn Dicey has identified this feature as early as 1895. For him, knowing and understanding how a constitution is amended ‘is almost equiv­alent to knowing who is the person or who are the body of persons in whom, under the laws of that State, sovereignty is vested’.^[703] Similarly, Sujit Choudhry explains that amendment powers ‘stipulate where the ultimate locus of political sovereignty lies, and are the most basic statement of a community’s political identity’.^[704] Other commentators also make the connection between amendment powers and sover- eignty,^[705] and relate these powers to constituent power.^[706] Indeed, amendment rules are so significant and are intimately related to the fundamentals of the constitutional order that they strike ‘at the heart of what it means to be a people who have joined together in a common venture both to define itself as a collective and to build the apparatus of their state’.^[707] Amendment rules, therefore, could help identify the contours of ‘the people’ and who is included and excluded from the political grouping that is thought of to hold sovereignty.

The expressive function of amendment rules is even more pronounced when it comes to unamendable constitutional provisions or principles.

The expressive function is not the only relevant function. Constitutional theorists have identified more specific functions that unamendable provisions fulfill. Richard Albert identifies three functions of unamendable provisions: the preservative function, the transformational and the reconciliatory.^[710] The most relevant function of unamendability for the purposes of this chapter is the preservative one. As the name implies, it seeks to preserve values or principles that are fundamental to the state.^[711] As such, it is focused on the past and tries to freeze certain moments or conceptions related to the founding act, and seeks to bestow on them a sense of eternality. Unamendable provisions or principles that reflect preservative entrenchment are particularly problematic from the point of view of democratic legitimacy. They tie the hands of the citizens and inhibit the potential of developing the constitution in a manner that accounts for social, economic and political changes. This is especially problematic when the entrenched value is one that is particular and contested. It is even more so in the context of divided societies where the entrenched values are meant to congeal certain benefits bestowed upon part of the population only.

The transformational function, on the other hand, is forward-looking. Transformational unamendable provisions mark a clear cut from the past, usually one that is mired by injustice, with the view of starting afresh and aspiring to entrench values that would put the state on a new track.^[712] These values are gen­erally related to democracy, and principles and institutions that are associated with democracy such as human rights protection. Of course, for the transformation process to happen and to achieve the entrenched values is not just a matter of constitutional text. Equally important, if not more important, is the political will among the citizenry and the political actors. The transformation, therefore, should reflect, or at least speak to, the aspirations and ambitions of all citizens, regardless of their backgrounds or affiliations.

The third function that Albert identifies is in some sense related to transitional justice, and aims at diffusing the tension between different ethnic or political groups with a history of conflict and achieving reconciliation between the rival groups.^[713]

These functions are not mutually exclusive. Similarly, an unamendable provision does not always necessarily reflect basic principles.^[714] Nonetheless, the classifica­tions and functions discussed in this section are helpful in understanding the sig­nificance of unamendable provisions and principles. Building on these theoretical insights, the next sections will examine the significance of unamendability in Israel focusing mostly on the preservative and expressive functions. Here, I adopt Richard Albert’s classification of unamendability along substantive and procedural dimen­sions in addition to formal and informal dimensions.^[715]

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