The pillars of the judicial nullification power

The judicial power to nullify constitutional amendments has not yet taken root in all constitutional states nor it is likely to do so. Some constitutional states will remain inhospitable to the doctrine of unconstitutional constitutional amendment,^[821] some judges on high courts around the world will recoil at the exercise of the extraordinary power to nullify an amendment,^[822] and still other judges will reject the very idea that an amendment can be unconstitutional.^[823] Nonetheless, the doctrine of unconstitutional constitutional amendment has migrated across jurisdictions and may continue to expand its reach, but for now it is far from achieving the status of a global norm.

12.2.1 A sword or a shield? Competing views of democracy

The idea of an unconstitutional amendment finds support or resistance in com­peting theories of democracy. On one view, the power of judicial nullification is an anti-democratic sword. Courts overstep their boundaries when they invalidate a constitutional amendment that has earned approval from the people or their representatives, or from both. Democracy here refers to governing on the basis of a popularly validated judgment made in the present moment. When a court exer­cises the extraordinary power of nullification, that is effectively a sword striking at the heart of democracy to the very core of collective movements in democratic self-governance.

The counterview is just as strongly rooted in democracy. Only here democracy is not understood as the ever-changing politics of the moment. Democracy is instead represented by the constitutional bargain made at the writing and ratifi­cation of the constitution. That is the highest expression of democracy, on this view, and that is what requires protection. As a result, when a court exercises its nullification power to invalidate an amendment, the court is defending the original constitution and its democratic foundations by protecting the constitu­tion and its founding principles from attacks that would undermine the people's constitutional commitments.

12.2.2 The theory of delegation

The best argument offered thus far to justify a court invalidating a constitutional amendment is anchored in the theory of constituent power, first articulated by Emmanuel Joseph Sieyes, a French political theorist whose principal interest was to build a theory to protect the essential right of the people to choose the meaning of their constitution and how it should change.^[824] According to this theory of con­stituent power, only the people may create and, by its creation, legitimate a new constitution.^[825] The people's representatives possess the considerably lesser power only to make changes to the constitution provided those changes are consistent with the structure and spirit of the people's constitution.^[826] Any change more far- reaching than that - one that alters the core commitments of the constitution - must be authorized and therefore legitimated by the people themselves. For Sieyes, the people embody the constituent power, meaning the supreme body that con­stitutes all others. These other bodies - the constituted powers - are inferior to the people and their constituent power. These constituted powers include the legislature, the executive, and courts as well. The legal fiction of the theory of constituent power holds that these representative bodies of constituted powers are created, authorized, or regulated by the constitution, which in turn has been cre­ated by the people. The bottom line, then, is this: constituted powers are bound by the rules established in the constitution by the constituent power.

The democratic foundations of the doctrine of unconstitutional constitutional amendment begin now to come into focus. These foundations are anchored in the delegation theory of constitutional change. Given that the people have created the constitution and delegated to their representatives only the limited power to modify the constitution in ways that keep the constitution aligned with its original form and values, the constituted powers cannot make changes to the constitution authorized by the constituent power without doing violence to the expressed will of the people.^[827] Only the people themselves exercising their constit­uent power may make such changes to the constitution.

12.3