Theoretical Challenges to Unamendability

2.1 The ‘Dead Hand'

Unamendability seems to pose an obstruction to what might be viewed as a healthy social development. A society ought to abide by a set of values it believes in.

Constitutional amendment formulas are Janus-faced. They both create the ‘dead hand’ difficulty by requiring an often-formidable procedure for amending the con­stitution and simultaneously manage to relax it by allowing future generations to change the constitution.^[108] By preventing current and future generations from amending certain parts of the constitution, unamendability exacerbates the ‘dead hand’ difficulty.^[109] This is a (perhaps the) major objection to unamendability. One can only recall Art. 28 of the French Declaration of Rights and Men and Citizens of 24 July 1793, according to which ‘A people have always the right of revising, amending and changing their Constitution. One generation cannot subject to its laws future generations’.^[110] Thomas Jefferson^[111] and Thomas Paine^[112] pronounced similar ideas. Therefore, the notion that a generation can perpetually tie the hands of another is understandably contentious.^[113] Elisha Mulford gave an acute expression for this idea, describing an unamendable constitution as:

The worst tyranny of time, or rather the very tyranny of time.

In light of this challenge, critics have argued that unamendability should be repealed or ignored at will, and all the more so not be judicially enforceable.^[115]

The dead hand objection is significant yet it is not entirely convincing. First, even when provisions of unamendability are considered as legally binding, they can arguably be amended. How? The majority of unamendability provisions establish the una­mendability of certain constitutional subjects but they are themselves not entrenched.^[116] Accordingly, from a purely formalistic approach, provisions of unamendability may be amended in a double amendment procedure: first, repealing the provision that prohibits certain amendments (an act that is not in itself a violation of the constitution) and second, amending the previously—but no longer—unamendable principle or provision.^[117] Of course, a wise constitution drafter would use a ‘double entrenchment mechanism’ by drafting provisions of unamendability which are self-entrenched.^[118] However, even when provisions of unamendability are not self-entrenched, I have argued elsewhere, provisions of unamendability should be recognised as implicitly self-entrenched based upon the maxim ‘what cannot be done directly cannot be done indirectly’,^[119] and since any other approach would be akin to a ‘fraud of the constitution’.^[120]

Second, and more importantly, unamendability does not entirely restrict future generations who may exercise their primary constituent power and alter even provisions of unamendability (whether self or non-self-entrenched).^[121] As Vicki Jackson argues, unamendability should not be viewed as blocking all the demo­cratic avenues, but rather merely proclaiming that one such avenue—the amend­ment process—is unavailable.

Stephan Michel and Ignacio Cofone are correct in claiming that overcoming unamendability by initiating a completely new constitution-making process is problematic, since by opening the entire constitution for re-negotiation it increases costs and facilitates strategic bargaining.^[125] Moreover, there is surely a great value to the continuity and maintenance of the existing constitutional order, not the least in order to preserve stability, and respect and faith in the political order, and in the supreme document which sets and regulates governmental institutions, and protects fundamental rights and principles.^[126] Yet at least from a theoretical point of view, the important point is that unamendability is not inconsistent with the people’s sovereign power.^[127] On the contrary, unamendability not only accords with the people’s sovereignty, as it allows them to reform their constitution by exercising primary constituent power, but it is a sovereignty-reinforcement mechanism, as it creates a space of decision-making (that of the fundamental principles of the polity), which is reserved solely for ‘the people’.

2.2 Logical Subordination

When unamendability is enforced by courts, this creates at least one theoretical challenge. Constitutions create courts and grant them authority. All powers pos­sessed by constituted organs, including courts, derive explicitly or implicitly from the constitution.

If the Supreme Court, created by, and owing its authority and existence to the Constitution, should assume the power to consider the validity or invalidity of a constitutional amend­ment [...] it would be assuming the power to nullify and destroy itself, of its own force, a power which no artificial creation can conceivably possess.^[128]

The subordination difficulty rests on a fallacy. It only arises if one conceives amendment powers as equivalent to primary constituent powers. Indeed, if the court reviewed a provision of an original constitution that established its own authority, this might involve the logical subordination difficulty. The constitution of Bosnia and Herzegovina is an interesting case study. In two cases before the Constitutional Court, certain constitutional provisions that granted privileges for Bosnians, Serbs and Croats were challenged before the Constitutional Court for conflicting with the principle of equality. The majority of the Constitutional Court’s judges held that the Court lacked the competence to decide upon the constitutionality of the constitu­tion. Otherwise, if it decided that part of the constitution was ‘unconstitutional’, it would fail its duty under Art. VI(3)(a) of the Constitution to ‘uphold this Constitution’.^[129] This differs from the example of South Africa, in which the Constitutional Court declared the Constitution of 1996 to be unconstitutional.^[130] In the latter case, the Interim Constitution of 1993 entrusted the constitutional assembly to work within a framework of 34 agreed-upon principles, and empow­ered the Constitutional Court to review the compliance of the draft Constitution with those principles. Therefore, the Court was exercising an explicit delegated authority, within its competence, in observing the constitution-making process.

However, since primary constituent powers and amendment powers are dis­similar, the challenge imposed by the logical subordination difficulty does not rise. An analogy from the distinction between constituent power and legislative power may elucidate this: in ordinary exercise of judicial review, the acts of the ordinary lawmaker operating under the constitution are reviewed against the background provided by the constitution-maker.^[131] Similarly, a constitutional amendment adopted by the secondary constituent power may be reviewed against the back­ground provided by the primary constituent power. Of course, this logic only applies when one accepts the distinction between constituent power and amendment power. In acknowledging the distinction between the primary and secondary constituent power, it is possible to grasp that by the exercise of the judicial review of constitutional amendments the judiciary does not act in contradiction of the constitution, but as its preserver.^[132]

2.3 Undemocratic

A central objection to unamendability is that it is deemed as undemocratic. Since a self-governing people ought to be able to challenge or revise its basic commitments, the ability to amend the constitution seems an essential element of any democratic society. Unamendability positions certain rules or values not only above ordinary politics but also above constitutional politics and the popular will.^[133] By not allowing majorities—even super-majorities—to modify these rules or values, and by neglecting the importance of the present political process as a basic protection for the exercise of democratic self-government, unamendability is in clear tension with democratic principles.^[134] Arguably, it should be the people’s decision (directly or through their representatives) whether a certain constitutional element is essential to the constitutional order or not and this decision should not be subject to judicial review.^[135] Critics therefore argue that unamendability ‘betrays one of democracy’s most attractive legacies: the ability to modify law’,^[136] or ‘deny citizens the demo­cratic right to amend their own constitution and in so doing divest them for the basic sovereign rights of popular choice and continuing self-definition’.^[137] Some have even gone as far as describing unamendability as a ‘constitutional dictator­ship’ or ‘a legal authoritarianism’.^[138]

The question whether unamendability is ‘undemocratic’ involves four separate aspects.^[139] The first is whether the absolute entrenchment itself of any subject (re­gardless of its content) is undemocratic.

Therefore, as for the first aspect, the argument that any pre-commitments con­straining the amendment power present a challenge to democracy relies on a narrow procedural view of democracy. Unamendability may accord with a broad sub­stantive theory of democracy.^[141] Moreover, there is no doubt that unamendability exacerbates the counter-majoritarian difficulty.^[142] Yet, unamendability is precisely an institution that aims to neutralise the dangers of majoritarianism.^[143] Unamendability could thus be viewed not as undemocratic but rather as a tool forestalling the possibility of a democracy’s self-destruction.^[144] Lastly, if we recognise constitutionalism as a system of ‘higher law’, according to which democratic majoritarianism must give way to certain commitments to principles, or as indispensable legal limits to governmental power,^[145] unamendability simply takes this idea to its extreme. The recognition of the amendment power—like any other power within the constitutional scheme—as limited is an indispensable conse­quence of the organisation of powers within a limited government.^[146]

With regard to the content of the unamendable subject, there is no categorical answer and every case must be judged on its own merits. Clearly, unamendability can protect issues that would reasonably be considered ‘desirable’ democratic values, such as human dignity, the democratic process or the rule of law. Other unamendable provisions, even if ‘desirable’ from a democratic perspective, can hardly be considered a pre-condition for democracy.^[147] Unamendability can also protect ‘undesirable’ principles or practices, from a democratic perspective, such as the Corwin Amendment, which was proposed in 1860 and aimed to protect slav­ery.^[148] Such an unamendable provision would be undemocratic from both the procedural and substantive notions of democracy. Unamendability which protects autocratic values or oppresses minorities is surely objectionable.^[149] Unamendability can also be problematic from a democratic point of view in deeply divided societies when it entrenches a certain ethnic/religious identity which alienates minorities.^[150]

With regard to the scope of unamendability, prima facie, the wider the scope of the unamendability—i.e. the larger number of principles, institutions or rules which are placed beyond the reach of any majority—the greater its tension with democ- racy.^[151] Without the ability of citizens to modify society’s basic values, civil motivation to participate in any decision-making process would probably deterio­rate, and the public debate would be replaced by apathy. By that, unamendability risks impoverishing democratic debates.^[152]

In response, it has to be noted that the mere act of unamendability of certain values might actually place them at the centre of public debate when otherwise such values might not have been even open for dispute. Moreover, unamendability creates a ‘chilling effect’, what Mark Tushnet describes as a ‘sword of Damocles’,^[153] leading to hesitation before repealing an unamendable constitutional subject, thereby allowing time for political and public deliberations regarding the protected constitutional subject and placing them at the centre of the public agenda.

As for judicial enforcement of unamendability, surely, endowing court with the authority to declare constitutional amendments unconstitutional for violating una­mendable provisions enhances the counter-majoritarian difficulty embodied in the situation of unelected and unaccountable judges who override the decisions of people’s representatives.^[154] How can a small, often divided, set of judges replace the democratic judgment of the people and their representatives? As Rory O’Connell correctly notes, allowing courts to review constitutional amendments might turn the ‘people’s guardian of the constitution against politicians’ into ‘a guardian of the constitution against all comers’.^[155]

One possible reply is that when courts review amendments vis-a-vis the con­stitution’s unamendable principles, they are not acting in a completely counter-majoritarian manner, for they have the support of the high authority of the primary constituent power. Judicial review thereby expresses the democratic base of the constitution, i.e. it gives expression to the will of ‘the people’ as a superior legal norm which conflicts with the present will of the political majority as expressed by the constitutional amending power.^[156] Thus, when judges enforce unamendability, they are vindicating, not defeating, the will of the people as expressed in constitutional moments contra to the everyday political process. According to this view, judicial review of amendments articulates a different, deeper or more basic will, than the current political majority. The conflict that the court then decides is between the supra-temporal will of the people as expressed in the basic principles of the constitution, and the temporary will of the people as expressed in a constitutional amendment. Consequently, judicial enforcement of unamendability may be regarded as democratic or even majoritarian in a way, since it represent past-present-and future super-majorities. However, even if one rejects that said conception of primary constituent power, unamendability does not nec­essarily prevent the people from engaging in the political process and deliberations. The reason for this is that via the emergence of the primary constituent power even the most basic principles of society can be reformed. That makes the people in their primary constituent power capacity, not the courts, the final arbiters of society’s basic values.^[157]

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