Part III Enforcing Constitutional Unamendability, Conclusion
In 1948, Kurt Gödel, the famous Austrian logician, applied for naturalization as an American citizen. Preparing for the citizenship examination, Gödel thoroughly studied American history and the US Constitution. One day, Gödel called his friend, Princeton University mathematician Oskar Morgenstern. Years later, Morgenstern described the conversation that he had with Gödel:
[Gödel] rather excitedly told me that in looking at the Constitution, to his distress, he had found some inner contradictions and that he could show how in a perfectly legal manner it would be possible for somebody to become a dictator and set up a Fascist regime never intended by those who drew up the Constitution.1
Morgenstern told him he should not worry since such events were unlikely to ever occur. Since Gödel was persistent, Morgenstern and another mutual friend, Albert Einstein, tried to persuade Gödel not to bring this issue up at the citizenship examination. On the examination day, Einstein and Morgenstern both accompanied Gödel to his interview at the Immigration and Naturalization Service as witnesses. After the examiner questioned both witnesses, the following exchange occurred, according to Morgenstern’s own account of the hearing:
‘Now, Mr. Gödel, where do you come from?’
‘Where I come from? Austria.’
‘What kind of government did you have in Austria?’
‘It was a republic, but the constitution was such that it finally was changed into a dictatorship.’
‘Oh! This is very bad. This could not happen in this country.’
‘Oh, yes, I can prove it.’
‘Oh God, let’s not go into this…’2
Einstein and Morgenstern were horrified during this exchange, but the examiner swiftly quietened Gödel on this point until Gödel had finished his interview. What was the ‘inner contradiction’ that Gödel discovered within the US Constitution? This will remain a riddle, as Gödel left no clues. Some scholars who have studied Gödel suggest he realized that an unlimited amending power possessed the risk of tyranny. Since the US Constitution amending provision has no substantive limitations apart from equal representation in the Senate, the amendment power might be utilized to subvert the democratic institutions designated in other provisions of the Constitution, including the amendment provision itself.3 One must ask: is the amendment power, in the absence of any explicit limitations to the contrary, sufficiently broad so as to destroy the very basis of the constitution?
Drawing from a comparative study, this book set out to explore the nature and scope of constitutional amendment powers. As my survey of explicit unamendability demonstrates, a large percentage (40 per cent) of constitutions across the world explicitly contain unamendable principles (see Chapter 1). This corresponds with Richard Kay’s reflection that ‘the core notion … that there is something wrong with the idea that an “amendment” might alter the essential character of a constitution while simultaneously invoking its authority … has been embraced by many modern constitution-makers’.4 Even in States where the constitution is silent on explicit unamendability, there is a growing tendency of the courts, following the Indian courts’ development of the ‘Basic Structure Doctrine’, to acknowledge a set of implicitly unamendable core principles (see Chapter 2). Substantive unamendability is now a global trend of contemporary constitutionalism.5
Constitutional unamendability, this book argues, is compatible with the limited nature of amendment powers. Charles Howard McIlwain wrote that ‘a constituted authority is one that is defined, and there can be no definition which does not of necessity imply a limitation’.6 The constitutional amendment power is not an ordinary constituted power, but a sui generis one. However, it is still a defined and limited constitutional authority. The secondary constituent power, which is a delegated power that acts as a trustee of the primary constituent power, cannot destroy the constitution or replace it with a new one. Replacing the constitution is the role of the primary constituent power (see Chapter 4). While the delegation theory and the distinction between primary and secondary constituent powers can apply in different types of regimes, from a democratic perspective it is ‘the people’, in their capacity as holders of the primary constituent power, who should decide upon fundamental constitutional transformations, not the instituted amendment authorities. Of course, nowadays, even primary constituent powers may be regarded as limited by supra-constitutional norms (see Chapter 3).
True, the thin line between primary and secondary constituent powers is blurred in contemporary constitutional societies.7 As Giorgio Agamben writes, within the current trend of legalization, ‘constituent power is more and more frequently reduced to the power of revision foreseen in the constitution’.8 Indeed, constitutional amendments are often used in order to fundamentally transform the constitutional order, establishing, in effect, a new constitution. For instance, the Hungarian transformation from communism occurred by way of constitutional amendments to the 1949 Constitution.9 Whereas such a transformation may well carry various certainty and stability benefits,10 this complete reform, which brought about a new constitution, suffered ‘legitimacy problems and clashes of identification’.11 Indeed, when amendment provisions are used for creating new constitutional regimes, important issues of legitimacy rise.12 By the same token, the authoritarian regime in Chile was transformed into a democratic one in the early 1990s through a series of constitutional amendments. While this experience illustrates how an authoritarian constitution can change into a democratic one, Amaya Alvez Marin describes how this ‘transformation, which was effected through amendments that were based on the previous constitution, created an element of continuity with the previous authoritarian regime, which hindered the democratization and liberalization process’.13 Thus, nations may favour completely replacing an old constitution with a brand-new one to signify a clear break with the past.14
The theory of constitutional unamendability restricts the amending authorities from amending certain constitutional fundamentals. Underlying it rests the understanding that a constitution is built upon certain principles that grant it its identity and fill it with essence:
Every constitutional arrangement is based upon a set of core principles which cannot be changed and which can be regarded as intrinsic to its specific identity … These superconstitutional provisions could be referred to as the genetic code of the constitutional arrangements…15
As outlined in Chapter 5, this theory is here termed foundational structuralism. Foundational structuralism holds that the foundations underlying the constitutional structure are unamendable, and amending them would bring an end to the constitution and instead create a new one. Constitutional unamendability also emphasizes the thin line between constitutional success and constitutional failure. In order to maintain itself and progress with time, a constitution must be able to change and include an amendment procedure to that effect, as an unamendable constitution is doomed to fail.16 At the same time, certain constitutional changes can themselves be regarded as constitutional failures. Amendments that alter the constitution’s basic principles so as to change its identity signal a breakdown of the existing constitutional regime and its replacement with a new one.17
Unlimited amendment power collapses the distinction between constitutional replacement and constitutional amendment. Consequently, it can also extinguish the primary constituent power. However, amendment powers are not unlimited, and this unamendability applies only to those authorities delegated with the competence to amend the constitution rather than to the holders of the primary constituent power in democracy, namely ‘the people’ themselves. As Selden Bacon asked, if Congress and the legislatures held unlimited amendment powers, what was reserved to ‘the people’?18 ‘The people’ retain the primary constituent power and, through exercising this power, may amend and establish the political order and its fundamental principles. Primary constituent power is manifested through a democratic appearance of popular sovereignty in extraordinary constitutional moments. In these moments, politics moves from the second track of democracy, or constitutional politics, to the third track of democracy, and the present people, through broad and deep public and institutional deliberations, may reshape the polity’s constitutional identity. Understood in this way, the doctrine of unamendability can be seen as a safeguard of ‘the people’s’ primary constituent power (see Chapter 4). Once the theory of unamendability is correctly construed, judicial enforcement of unamendability serves as a mechanism for ensuring the vertical separation of powers between the primary and secondary constituent powers. Unamendability and its judicial enforcement, then, are not regarded as completely preventing democratic deliberation on a given ‘unamendable’ matter, but rather as making sure that certain changes take place via the proper channel of higher-level democratic participation and deliberations (see Chapter 7). Note that not all secondary constituent powers are equally limited, though. Constitutional systems are polymorphic and their scope varies according to their amendment processes. Amendment procedures that imitate ‘constitutional moments’, by creating extraordinary deliberative and popular participatory procedures, aim to bridge the gap between the primary constituent power and the secondary constituent power. These nearly democratic invocations of primary constituent power should be given a greater margin of change than amendment procedures which are more similar to ordinary legislative powers. This theoretical construct is termed ‘the spectrum of amendment powers’ in Chapter 6. The study of constitutional unamendability is, thus, central to constitutional theory pertinent to ‘the people’s’ capacity of self-binding and self-correction.
The theory of constitutional unamendability studies the complex issue of the nature and scope of constitutional amendment powers, yet it exposes other questions for further study. First, the distinction between the primary and secondary constituent powers is not as neat as is advocated in this book. One may ask: who are ‘the people’? How do we recognize them? Through which mechanisms can ‘the people’ speak in one voice? Currently, these remain open questions.19 The theory of unamendability blocks certain modifications of the constitution through the exercise of amendment procedures, yet it simultaneously creates another challenge by allowing powerful actors to invoke the primary constituent power in order to bypass unamendability and even constitute a new constitutional order. In that respect, ‘the unconstitutional constitutional amendments doctrine may achieve less than one would hope’.20 This conceptual difficulty does not undermine the argument. Important constitutional decisions ought to be accepted through extraordinary mechanisms, which include wide popular participation and deliberation in a way that imitates, or at least comes as close as possible to, an episode of emergence of primary constituent power. Constitutional theory should advance an understanding of what is a ‘genuine’ or ‘legitimate’ exercise of primary constituent power.21
A related issue is that, according to the theory of unamendability, the primary constituent power always has the ability to re-emerge and disregard constitutional constraints, including unamendability. That is why constitution-making moments are described in the literature as a kind of ‘wild west’.22 The theory of unamendability, thus, encourages another area of research; if the fact that the primary constituent power is not bound by prior constitutional rules, does this mean that it is unlimited in the sense that it can disregard any basic principles, or should Benjamin Constant’s declaration that ‘sovereignty of the people is not unlimited’ be endorsed?23 Murphy, for example, contends that there are certain limitations even ‘on the constitutive power of the people as whole’.24 If the goal of constitution-making is to promote constitutionalism rather than to produce written constitutions25 then, plausibly, constitutionalism and constitutions are inseparably linked so that, in order to be normatively binding, an exercise of constituent power must be implicitly limited in such a manner that it cannot undermine constitutionalism and must be linked to certain common principles of law.26 The very concept of constituent power may carry certain inherent limitations since, in order to be consistent with the idea of ‘the people giving itself a constitution’, it must observe certain fundamental rights which are necessary for the constituent power to preserve itself and reappear in the future.27 Yet, in contrast to this, there is an important claim that recognizes the ability of constituent powers to overthrow regimes in both directions: whereas a transition from a non-democratic regime to a democracy is always welcome, acceptance of this transition means that one must acknowledge the power of a transition that moves in the opposite direction.28 Nonetheless, this crucial question is not the pivotal issue under investigation in this book, which is principally concerned with the nature and scope of amendment powers. Further research should focus on precise substantive limitations that are associated with the modern concept of primary constituent power.29
Finally, according to the theory of unamendability, certain constitutional amendments might be unconstitutional because they attempt to do more than merely amend the constitution; they attempt to replace it with a new one. Since the amendment power is a delegated authority, such an act is ultra vires. However, as noted in the introductory chapter of the book, constitutions change not only through amendments, but also, and in the majority of cases, through judicial interpretation and constitutional practice. Since courts are also constituted authorities, they are similarly limited in their scope of action. If certain principles are unamendable, does this mean that courts cannot interpret the constitution in a manner that ‘revolutionizes’ it? Can courts change the essence of the core of the constitution and its basic principles, an action that requires resorting to the primary constituent power? In other words, what are the limitations that are imposed upon the judiciary when it conducts constitutional interpretation, and can a constitutional interpretation be considered unconstitutional?30 These questions are beyond the limited scope of this book, which focuses solely on formal constitutional changes. At the same time, given the advantages promoted in this book, these questions can be adequately addressed.
Constitutional democracy is characterized by ‘contradictory principles’ that are inherent in the system.31 A conflict exists between democratic and constitutionalist approaches towards unamendability. Democrats regard unamendability as an obstacle to democratic decision-making. A democratic society, according to this approach, should be able to change any law whatsoever. This notion conflicts with the constitutionalist approach. Certain principles, a constitutionalist would claim, should be above democratic decision-making. Therefore, constitutionalists would generally approve of unamendability. This book seems to be positioned on both sides of the debate. The central theme of the theory of constitutional unamendability is strongly constitutionalist; it defends a fairly broad and robust concept of substantive limitations to the amendment power, which includes both explicit and implicit unamendability. The theory of unamendability also explains the controversial practice of judicial enforcement of unamendability mechanisms. Strong democrats would surely not approve this scheme. Nonetheless, the correlating theme of this book takes a strong democratic conception of constitutionalism;32 it is democratic in the sense that the nation’s fundamental constitutional decisions belong to ‘the people’ in their primary constituent power, and that in such capacity, ‘the people’ are unbound by prior constitutional rules, even that of unamendability. Constitutionalists, surely, would not support this idea. Destined to be criticized by both democratic and constitutionalist schools of thought, this book aims to present a coherent and consistent position regarding procedural and substantive dimensions of the amendment rule, as well as the non-exclusiveness of amendment provisions and the substantively explicit and implicit nature of constitutional unamendability.33
‘At first blush’, William Harris comments, ‘the question of whether an amendment to the constitution could be unconstitutional seems to be a riddle, a paradox, or an incoherency. This problem is accentuated when one asks whether there is an agency that could make the determination.’34 As this book demonstrates, the phrase ‘unconstitutional constitutional amendment’ does not entail a paradox, but merely a misapplication of presuppositions. Once the theory of constitutional unamendability is correctly construed, the alleged paradox disappears.
1 Oskar Morgenstern, ‘History of the Naturalization of Kurt Gödel’, Draft Memorandum (13 September 1971), reprinted in ‘The Institute Letter’, Institute for Advanced Study (Princeton University Spring 2006) 7, <http://www.ias.edu/files/pdfs/publications/letter-2006-spring.pdf>
3 F. E. Guerra-Pujol, ‘Gödel’s Loophole’ (2013) 41 Capital University L. Rev. 637; Peter Suber, The Paradox of Self-amendment: A Study of Logic, Law, Omnipotence, and Change (Peter Lang Publishing 1990) Section 16.
5 Juan Gabriel Gómez Albarello, ‘Reformas inconstitucionales a la constitución: un caso agravado de la tensión entre la democracia y el constitucionalismo’ (2012) 75 Análisis político 67; Mark Tushnet, Advanced Introduction to Comparative Constitutional Law (Edward Elgar 2014) 28–32.
9 Andrew Arato, ‘Parliamentary Constitution Making in Hungary’ (1995) 4 E. Eur. Const. Rev. 45. Arato notes that such a constitutional change ‘would signify a constitutional break merely disguised by procedural continuity’. See also Andrew Arato, ‘Dilemmas Arising from the Power to Create Constitutions in Eastern Europe’ (1992–3) 14 Cardozo L. Rev. 661, 676.
11 György Szoboszlai, ‘The Politics of Constitutional Amendment: Hungary’s Lasting Transitory Constitution’ in Mads Andenas (ed.), The Creation and Amendment of Constitutional Norms (BIICL 2000) 174, 188. On the legitimation problems in the Hungarian constitution-making processes, see Andrew Arato, Post Sovereign Constitution Making—Learning and Legitimacy (Oxford University Press 2016) 170–86.
12 Claude Klein and András Sajó, ‘Constitution-making: Process and Substance’ in Michel Rosenfeld and András Sajó (eds), The Oxford Handbook of Comparative Constitutional Law (Oxford University Press 2012) 419, 437; Andrew Arato, ‘Continuity and Its Crisis’ (1993–4) 3 Tilburg Foreign L. Rev. 352.
14 Catherin Dupré and Jiunn-rong Yeh, ‘Constitutions and Legitimacy over Time’ in Mark Tushnet, Thomas Fleiner, and Cheryl Saunders (eds), Routledge Handbook of Constitutional Law (Routledge 2013) 45, 53. See also Bruce Ackerman, The Future of Liberal Revolution (Yale University Press 1992) 61 (urging post-communist countries not to conduct a series of constitutional amendments; rather, ‘if the aim is to transform the very character of constitutional norms, a clean break seems desirable…’).
17 James E. Fleming, ‘Successful Failures of the American Constitution’ in Tulis and Macedo, ibid, 29, 40.
19 See, for example, Hans Agné, ‘Democratic Founding: We the People and the Others’ (2012) 10(3) Int’l J. Const. L. 836; Geneviève Nootens, ‘Constituent Power and People-as-the-Governed: About the “Invisible” People of Political and Legal Theory’ (2015) 4(2) Glob. Cons. 137.
20 David Landau, ‘Should the Unconstitutional Constitutional Amendments Doctrine Be Part of the Canon?’ (Int’l J. Const. L. Blog, 10 June 2013), < http://www.iconnectblog.com/2013/06/should-the-unconstitutional-constitutional-amendments-doctrine-be-part-of-the-canon>. See also David Landau, ‘Abusive Constitutionalism’ (2013) 47(1) UC Davis L. Rev. 189; David Landau, ‘Constitution-making Gone Wrong’ (2013) 64(5) Alabama L. Rev. 923, 959.
21 This is elaborated on in Yaniv Roznai, ‘“We the People”, “Qui, the People” and the Collective Body: Perceptions of Constituent Power’ in Gary Jacobsohn and Miguel Schor (eds), Comparative Constitutional Theory (Edward Elgar, forthcoming 2017).
24 Walter F. Murphy, Constitutional Democracy—Creating and Maintaining a Just Political Order (John Hopkins University Press 2007) 516. See also Walter F. Murphy, ‘Staggering toward the New Jerusalem of Constitutional Theory: A Response to Ralph F. Gaebler’ (1992) 37 Am. J. Juris. 337, 352; Walter F. Murphy, ‘Merlin’s Memory: The Past and Future Imperfect of the Once and Future Polity’ in Sanford Levinson (ed.), Responding to Imperfection: The Theory and Practice of Constitutional Amendment (Princeton University Press 1995) 163, 178–9.
26 See, for example, Hermann Heller, ‘The Essence and Structure of the State’ in Arthur J. Jacobson and Bernhard Schlink (eds), Weimar—A Jurisprudence of Crisis (University of California Press 2002) 265, 279; Jennifer Widner and Xenophon Contiades, ‘Constitution-writing Process’ in Tushnet, Fleiner, and Saunders (n. 14) 57, 58.
27 See, for example, Joel I. Colón-Ríos, Weak Constitutionalism—Democratic Legitimacy and the Question of Constituent Power (Routledge 2012) 111, 117–18; Joel I. Colón-Ríos and Allan C. Hutchinson, ‘Democracy and Revolution: An Enduring Relationship?’ (2012) 89 Denv. U. L. Rev. 593, 608; Satya Prateek, ‘Today’s Promise, Tomorrow’s Constitution: “Basic Structure”, Constitutional Transformations and the Future of Political Progress in India’ (2008) 1 NUJS L. Rev. 417, 464.
28 Claude Klein, ‘A Propos Constituent Power: Some General Views in a Modern Context’ in Antero Jyränki (ed.), National Constitutions in the Era of Integration (Kluwer Law International 1999) 31, 33. See contra Kim Lane Scheppele, ‘Unconstitutional Constituent Power’, Presented at Perspectives on Constituent Assemblies (Columbia University, 1–2 April 2016) (claiming that an ‘unbound’ constituent power can only move from autocracy to democracy. Once a democratic revolution has taken place, subsequent invocations of unconstrained constituent power cannot narrow or give up the existing democratic achievements, but only move toward greater democratization).
29 See my in-progress project, Yaniv Roznai, ‘We the Limited People? Four Routes of Restrictions on Constitution-Making Powers’ (Paper presented at the 2016 ICON-S Conference, Berlin, 18 June 2016). See also Bartosz Marciniak, Understanding Unamendability—The Core of Constitutionalism and Constituent Power (European University Institute, PhD Thesis, in progress).