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Unconstitutional Constitutional Amendments - The Limits of Amendment Powers by Roznai, Yaniv (16th February 2017)

Part II Towards a Theory of Constitutional Unamendability, 5 The Scope of Constitutional Amendment Powers

From: Unconstitutional Constitutional Amendments: The Limits of Amendment Powers

Yaniv Roznai

The Scope of Constitutional Amendment Powers

In Part I of this book, the various explicit and implicit limitations that may be imposed on the amendment power were described. Part II of this book suggests that such unamendability rests on a solid theoretical ground. This argument began in Chapter 4, in which it was claimed that the amendment power is not to be equated with the primary constituent power. Instead, it is a power established by the constitution and is delegated with the task of amending it. Due to its nature, it must be understood as limited. Based upon this theoretical presupposition, this chapter elucidates how the amendment power is limited. It also provides the theoretical ground that explains explicit and implicit unamendability.

Explicit Unamendability

The validity of unamendable provisions

The idea of constitutional entrenchment is debated extensively in the literature.1 However, because unamendability takes constitutional entrenchment to its extreme, it is often described as ‘absolute’.2 Ferdinand Regelsberger argued that ‘there is no law which cannot be changed. A legislator … cannot control the unchangeability of a legal norm.’3 For this reason, the French unamendable provision of 1884 was widely criticized, with various authors claiming that, while its moral or political value is evident, its legal effect is disputed.4 It was described as ‘useless verbiage’ or ‘an empty phrase’.5 Notwithstanding such criticism, Hans Kelsen’s view was that there is no reason to suppose a norm cannot stipulate that it cannot be repealed:

Contrary to a widespread opinion in the field of jurisprudence, the question whether norms exist which cannot be derogated must be answered in the positive if the question means: whether there are norms whose validity—according to their own meaning—cannot be repealed by a derogating norm, and if the question does not mean whether not every norm may lose its efficacy, and thereby its validity, and be replaced by another norm regulating the same subject matter in a different way.6

Therefore, for Kelsen, a norm could be declared as unamendable, yet such a declaration cannot prevent the loss of its validity by a loss of efficacy. Moreover, since a provision prohibiting any amendments is not invalid by its very nature, in the case of unamendable provisions, it is not legally possible to amend the protected provisions.7 Indeed, nowadays unamendable provisions are commonly considered valid.8

The theory hereby presented supports the validity of unamendable provisions, but relies on questions concerning the sources of constitutional norms. The secondary constituent power which is a delegated power may be restricted by the primary constituent power from amending certain principles, institutions, or provisions. The motives for such restrictions and the aims they are designed to accomplish vary (see Chapter 1). What is clear is that the amendment power, which is established by the constitution and subordinate to it, is exercised solely through the process established within the constitution. It is bound by any explicit unamendability that appears in the constitution, set by the primary constituent power. Gözler is thus correct in his assertion that:

The legal validity of these substantive limits is beyond dispute because they were laid down in the constitution by the constituent power. Therefore, the amendment power, being a power created and organized by constitution, is bound by the limits provided by the constitution.9

Gözler’s approach is positivistic, resting on a purely textual basis. The theory advanced in this book, as is elaborated in this chapter, is much wider, as it supports implicit unamendability even if it is not explicitly written in the constitutional text. For now, however, it is sufficient to note that, viewed from the perspective of the formal theory introduced in Chapter 4, explicit unamendability reflects the idea that any exercise of the amendment power must abide by the conditions, rules, and prohibitions stipulated in the constitution, including substantive limits. In that respect, unamendable provisions ‘can be seen as a procedural constraint which can be surmounted by an entirely new constituent act’.10 From the perspective of the substantive theory, unamendable principles are an example of the fact that the amendment power is limited with regard to the content of certain amendments and, in the words of Schmitt, can amend the constitution ‘only under the presupposition that the identity and continuity of the constitution as an entirety is preserved’.11 However, the substantive theory can only explain those unamendable provisions that aim to prevent fundamental changes in an effort to ensure the constitution’s integrity and the continuity of its constitutive principles. But unamendable provisions may simply derive from constitutional compromise and contingency and cover a wide range of topics, not necessarily the basic principles of the constitutional order (see Chapter 1). These cannot be supported by the substantive theory. The theory of delegation explains all types of unamendable provisions. The secondary constituent power, as a delegated power, acts as a trustee of the primary constituent power. It must obey those ‘terms’ and ‘conditions’ stipulated in the ‘trust letter’, namely the constitution.

What are the legal implications of a conflict between a new constitutional amendment and an unamendable provision? Unamendable provisions create a normative hierarchy between constitutional norms. Just as a constitutional law prevails over ordinary legislation,12 an unamendable constitutional provision established by the primary constituent power prevails over a constitutional amendment established by the secondary constituent power. When resolving conflicts between unamendable provisions and contrasting later amendments, the paramount factor is not lex posterior derogat priori, meaning their ‘chronological order of enactment’, but rather the sources of these constitutional norms. Thus, the constituent power is divided conforming to a hierarchy of powers—primary and secondary—governed by the principle lex superior derogat inferiori, meaning that the hierarchical superior norm supersedes a lower norm. Therefore, the constitutional rule issued by a higher hierarchical authority prevails over that issued by a lower hierarchical authority.13 In other words, a future amendment conflicting with an unamendable provision is not formulated by the same authority, but rather by an inferior one—the secondary constituent power. Since the primary constituent power is an authority that is superior to the secondary one, the normative creations of the latter should withdraw when conflicting with that of the former.

This is not merely a question of which constitutional norm takes priority in a conflict between two constitutional norms; rather, the issue can affect the validity of the conflicting inferior constitutional norm. This means that a court can declare the constitutional provision that conflicts with an unamendable constitutional provision to be invalid.14

An ‘unamendable amendment’?

A unique difficulty arises when an amendment stipulates by its own terms that either it or other provisions are unamendable. This is not a hypothetical scenario. In Bangladesh, the Constitution was amended in 2011 to insert Article 7B, an eternal clause that declared that ‘basic provisions of the Constitution’ are amendable.15 Even the original French unamendability of the republican form of government was inserted into the 1875 Constitution through an amendment in 1884, stimulating lively scholarly debates.16 In 1861, the ‘Corwin Amendment’, the original Thirteenth Amendment to the US Constitution, ‘eternally’ prohibited Congress from abolishing slavery when it proposed that ‘No amendment shall be made to the Constitution which will authorize or give to Congress power to abolish or interfere, within any State, with the domestic institutions thereof, including that of persons held to labour or service by the laws of said State’. The Corwin Amendment was passed by both the US House of Representatives and the US Senate in 1861 and was ratified by Ohio, Maryland, and Illinois. The ratification process was only put on hold due to the Civil War’s intervention and the final Thirteenth Amendment abolished slavery.17 It was recently argued that if the Corwin Amendment had been duly ratified then, as an unamendable amendment, it could not have been altered.18 Based on the distinction between primary and secondary constituent power, this argument should be rejected.

According to the delegation theory, limitations upon the delegated secondary constituent power can solely be imposed by the higher authority from which it is derived, namely the primary constituent power.19 Unamendable amendments may lose their validity when they face a conflicting valid norm that was formulated by the same authority. As elaborated in Chapter 4, unamendability cannot limit the primary constituent power; rather, it ‘invites’ it to be resurrected in order to change unamendable subjects. Accordingly, provisions created by the amendment power could subsequently be amended by the amendment power itself. Because both amendments are issued by a similar hierarchical authority, their conflict is governed by the principle of lex posterior derogat priori. Therefore, an ‘implicit limit’ exists, according to which ‘an amendment cannot establish its own unamendability’.20

Amending ‘unamendable’ provisions

Most of the world’s unamendable provisions establish the unamendability of certain constitutional subjects, but they are themselves not self-entrenched.21 Can non-self-entrenched provisions be amended? As a matter of practice, the answer is yes. In 1989, the unamendable provision in the Portuguese Constitution of 1976 (Art. 288) was itself amended and the unamendable principle of collective ownership of means of production was omitted. Paulo da Cunha notes that this amendment ‘has always shocked us because it undermines the standard meaning and thus causes the Constitution to lose all of its enforceability’.22 Importantly, the Court was never asked to review the validity of this controversial amendment. The effectiveness of unamendable provisions is thus connected to their enforcement through judicial review (see Part III of this book).

Theoretically, there are three approaches to solving this challenge. According to the first approach, if unamendable provisions are non-self-entrenched, unamendable principles or provisions may be amended in a double amendment procedure. The first stage is to repeal the provision prohibiting certain amendments, an act that is not in itself prohibited. The second stage is to amend the previously unamendable principle or provision, which is no longer protected from amendments.23

Based on the second approach, there is no need for a two-stage process, as the unamendable provision and the protected subject could both be repealed in the same act since the outcome is similar.24

The third approach, advanced in this book, argues that even non-self-entrenched provisions of unamendability should be implicitly recognized as unamendable. Georges Liet-Veaux famously described the use of the French Third Republic’s legal devices in order to form the Vichy regime as ‘Fraude a la Constitution’.25 From a purely formalistic perspective, the double-amendment procedure is tolerable, although it is a ‘sleazy escape route’.26 By amending the non-self-entrenched unamendable provision—the first stage as described above—the amendment authority prima facie purports to act within the limits of its lawful powers. However, from a substantive perspective, such a legal manoeuvre may also be regarded as ‘fraud upon the constitution’. In 1867, the US Supreme Court declared that ‘what cannot be done directly cannot be done indirectly. The Constitution deals with substance, not with shadows.’27 This maxim equally applies with regard to the amendment power. Therefore, unamendable provisions should be given a purposive interpretation according to which they are implicitly self-entrenched.28

From a practical point of view, of course, in order to avoid the double-amendment-procedure tactic, a clever constitution-maker would draft self-entrenched unamendable provisions, or unamendable provisions that by their express terms not only prohibit amendments of certain subjects but also prohibit amendments to themselves, which would be a ‘double entrenchment mechanism’.29 If non-self-entrenched unamendable provisions could be amended by means of the same procedure required to amend other provisions, they would almost be devoid of meaning. Why almost? The declaration of unamendability remains important even if conceived as eventually amendable, because its removal would still necessitate political and public deliberations regarding the protected constitutional subject. Unamendability might have a ‘chilling effect’, leading to hesitation before repealing the so-called unamendable subject. Such deliberations, then, grant the unamendable provision an important role. Moreover, even at the minimum, the unamendability adds a procedural hurdle, and thus better protection, since the double-amendment process is still procedurally more difficult than a single amendment process. The double-amendment procedure should therefore be rejected on both theoretical and practical grounds. To reiterate, in rejecting the double-amendment procedure, it is not claimed that unamendable provisions are ‘eternal’, since even self-entrenched unamendable provisions can be circumvented by acts of the primary constituent power.

Implicit Unamendability

As described in Chapter 2, courts in various jurisdictions have ascertained a certain constitutional core and a set of basic constitutional principles which form the constitution’s identity and which cannot be abrogated through the amendment procedure. In this section, it will be argued that the global trend of recognizing implicit unamendability rests on a solid theoretical basis and is compatible with the general thesis presented in this book.

Foundational structuralism

The first implied limitation derived from the theory of delegation is the most basic: the constitutional amendment power cannot be used in order to destroy the constitution. Michael Paulsen notes that ‘The Constitution itself embraces an overriding principle of constitutional and national self-preservation that operates as a meta-rule of construction … The Constitution is not a suicide pact; and, consequently, its provisions should not be construed to make it one, where an alternative construction is fairly possible.’30 This postulation applies equally to amendment provisions.31 The amendment authority entrusted with the amendment power cannot use this power in order to destroy the very same instrument from which its authority streams and on which it is built. The delegated amendment power is the internal method that the Constitution provides for its self-preservation. By destroying the Constitution, the delegated power subverts its own raison d’être.32

Thomas Cooley wrote that the US Constitution’s framers abstained from forbidding changes that would be incompatible with the Constitution’s spirit and purpose, simply because they did not believe that those would be possible under the terms of the amendment process itself. An amendment converting a democratic republican government into an aristocracy or a monarchy would not be an amendment, but rather a revolution. His metaphor is astoundingly clear:

The fruit grower does not forbid his servants engrafting the witch-hazel or the poisonous sumac on his apple trees; the process is forbidden by a law higher and more imperative than any he could declare, and to which no additional force could possibly by given by re-enactment under this orders.33

The amendment power was introduced for the purpose of preserving the constitution, not destroying it. Therefore, even in the absence of any explicit unamendability, the power to ‘amend’ the constitution clearly cannot be used in order to abolish the constitution.34 This would be a breach of trust.

The idea of implicit unamendability might be analogous to Wesley Hohfeld’s scheme of jural correlatives. With the creation of an agency power, the agent is subject to liabilities and his powers may be revoked or denied by the principal.35 In other words, alongside the legal power of the agent, namely the constitutional amendment authority, rests the liability to not undermine the same constitution itself. Therefore, to amend the constitution so as to destroy it and create a completely new constitution would be an action ultra vires, or a usurpation of the amendment power that ‘the people’ have not delegated to the amendment authority.

The second limitation derives from the first one, but it is one logical step forward: the constitutional amendment power cannot be used in order to destroy the basic principles of the constitution. The constitution, in that respect, is not the mere formal existence of the document; rather, it includes the constitution’s essential features. Each constitution has certain fundamental core values or principles, which form ‘the spirit of the constitution’.36 As Gerhard Anschutz wrote in 1922 on the democratic principle that guided the Weimar Constitution of 1919, it is ‘the spirit that pervades the whole’.37 This is what is termed, in this book, the foundational structuralism perception of constitutions. According to this perception, constitutions are not merely instruments of empowerment and restrictions or ‘power maps’ that reflect the political power distribution within the polity.38 They reflect certain basic political–philosophical principles, which form the constitution’s foundational substance, its essence or spirit.39 The constitution is structured upon these basic principles and it is no longer the same without them. The destruction of the constitutional core leads to the destruction of the entire constitution, even though particular constitutional provisions continue to be valid: ‘if certain [unamendable] principles, values, and norms … are seriously altered, the life of the constitution has actually come to an end. From its ashes, a new political regime emerges.’40 It is no longer this constitution. Just as the amendment power cannot destroy the constitution, it cannot destroy its fundamental principles. To use the delegation theory, when the amendment power alters the basic essential principles of the constitution, it ‘substantially varies’ from the purpose for which it was originated. It no longer amends the constitution, but rather constitutes a new one. Since an amendment cannot annihilate or eliminate the constitution, amending its basic elements and principles is prohibited, just as eliminating the constitution is prohibited. The alteration of the constitution’s core results in the collapse of the entire constitution and its replacement by a new one. This is the basic rationale behind the Indian ‘Basic Structure Doctrine’ and the Colombian Constitutional Replacement Doctrine (see Chapter 2).

The third limitation is that the amending power, like any governmental institution, must act in bona fides. As aforementioned, the delegated amendment power is not the power to destroy the constitution. Constitutional destruction, Dietrich Conrad remarked, can also occur ‘by using the form of amendment to directly exercise other constitutional functions in given cases, disregarding constitutional limitations and upsetting the constitutional disposition of powers’.41 Conrad states that even Richard Thoma, who otherwise opposed any notion of implicit unamendability, maintained that parliament could not, for example, dissolve itself in violation of normal prescribed procedures, or pass a bill of attainder.42 Eminent Indian law professor Upendra Baxi noted that even those Indian judges who did not pledge to the ‘Basic Structure Doctrine’ in Kesavananda did imply a certain ‘good faith’ limitation on the amending power.43 This ‘good faith’ limitation opposes misuse of the amendment power. Thus, although the amendment power is superior to ordinary constituted powers, it cannot be exercised in order to produce a ‘bill of attainder’ or a ‘legislative judgment’.44 It is indeed inconceivable that the government would hold limited legislation power and, at the same time, unlimited ability to enact the same ‘unconstitutional legislation’, which is purely legislative in substance, as a constitutional amendment. That is why Carl Friedrich claimed that

the constitutional legislator … has only the one function of amending the constitution, in accordance with procedures contained in the constitution. That is the only, and therefore very limited, competence of the constitutional legislator. He (or they) can neither make laws and ordinances nor take measures, but is limited to his one function.45

Whereas this limitation is more difficult to grasp than the previous two, when the content of the constitutional amendment is purely legislative, not ‘constitutional’, this raises suspicions that the enactment is being granted a constitutional status solely in order to ‘shield’ it from judicial review. The overall surrounding circumstances that lead to the decision to amend the constitution in such a way, in addition to the substance, are imperative in the decision as to whether the amending power is being misused or not.46 The fear of misuse of the amendment power is not a mere theoretical presupposition. As the lessons from India, Taiwan, and other places have taught us, it is built upon historical evidence (see Chapter 2). In Chapter 6, the issue of misuse of the amendment power will be further discussed.

Hierarchy of constitutional values

The comprehension of the constitution in terms of foundational structuralism necessitates an acknowledgment of two notions: that of a hierarchy of constitutional values or principles and that of a constitution’s identity.

A constitution is ‘a rich lode of principles’.47 However, not all constitutional principles are equally basic. The German jurisprudence on this idea is instructive. The German Basic Law is regarded as having an integrated structure and a hierarchical scheme of principles, including basic principles of government and human rights, with human dignity at the apex. This was recognized by the German Federal Constitutional Court early in 1951 in the Southwest case:

A constitution has an inner unity, and the meaning of any one part is linked to that of other provisions. Taken as a unit, a constitution reflects certain overarching principles and fundamental decisions to which individual provisions of the Basic Law are subordinate.48

Drawing from German jurisprudence, Walter Murphy consistently argued that constitutions in constitutional democracies present not simply a set of values, but rather a hierarchy or ordering of values. This system of values precludes the possibility of adopting an amendment that would infringe human dignity.49 A similar view, according to which amendments are not intended to disassemble the constitution’s structure or repeal constitutional essentials was defended by other leading American scholars. John Rawls, for example, claimed that the First Amendment’s protections are ‘entrenched in the sense of being validated by long historical practice. They may be amended but not simply repealed and reversed … The successful practice of its ideas and principles over two centuries place restrictions on what can now count as an amendment, whatever was true at the beginning.’50 Relating to Rawls’ proposal, Samuel Freeman accepts the existence of First Amendment freedoms so basic that their amendment would amount to illegitimate constitutional suicide.51 By the same token, Stephen Macedo suggests that amendments that expunge basic guarantees or eliminate fundamental rights and freedoms that are essential to the process of free and rational self-government aim to revolutionize rather than amend.52 Even Laurence Tribe, who calls for a reserved judiciary role with regard to constitutional amendments,53 seems willing to embrace the notion that some principles are so fundamental to the constitutional order and so logically central to the system’s coherence that they can be regarded as indispensable to the system’s legitimacy. Tribe recently wrote that some amendments, even harsh ones such as allowing torture in certain circumstances, while being objectionable, could not be said to be ‘beyond the pale as a constitutional matter if adopted in accordance with Article V’. This might seem to be a rejection of any implicit unamendability. But then, Tribe continues, ‘it may well be that some properly adopted formal amendments could themselves be deemed “unconstitutional” because of their radical departure from premises too deeply embedded to be repudiated without a full-blown revolution’.54 These leading scholars seem to share with Schmitt the essential notion of substantive implicit unamendability.55

The claim for recognition of a hierarchy of constitutional values is not immune to criticism. Gözler, for example, argues that even if there might be a moral difference between constitutional norms, there is no hierarchy, since they do not derive their validity from one another.56 This criticism seems to be based on a misapprehension of the idea behind the hierarchy of constitutional values with respect to implicit unamendability within a foundational structuralist analysis.

A foundational structuralist analysis of the constitution does not require the picking of a certain secluded constitutional provision as ‘an isolated island’; rather, it urges us to look at the constitution as a whole. As Conrad writes: ‘there are, beyond the wording of particular provisions, systematic principles underlying and connecting the provisions of the Constitution … [which] give coherence to the Constitution and make it an organic whole.’57 In his early writings, which were so influential on the Indian endorsement of the ‘Basic Structure Doctrine’, Conrad used the metaphor of pillars to explain the unamendability of basic constitutional principles: ‘any amending body organized within the statutory scheme, however verbally unlimited its power, cannot by its very structure change the fundamental pillars supporting its constitutional authority.’58 This sentence was quoted verbatim by Justice Khanna in Kesavananda and was persuasive in the judgment of Justice Shahabuddin Ahmed in Chowdhury v. Bangladesh:59 Conrad later remarked that ‘the graphical appeal almost by itself has the force on an argument’, highlighting the power of metaphors and language formulas within legal argumentation.60 The metaphor of the pillars that hold the constitutional structure is powerful and corresponds with the foundational structuralism perspective endorsed in this book.

Even to those who regard the constitution not as a structure but as an organic instrument, the argument of unamendable basic principles, which provides meaning for the greater whole, remains coherent. The metaphor of a living constitution is usually used in its interpretive meaning, in that the language of the document should evolve through judicial decisions according to the changing environment of society.61 A constitution’s amendment process provides another mechanism for such evolution, as a ‘built-in provision for growth’.62 Prima facie, the view that a constitution must develop over time supports a broad use of the amendment power. Nevertheless, even if we conceive of the constitution as a living tree that must evolve with the nation’s growth and develop with its philosophical and cultural advancement, it has certain roots that cannot be uprooted through the growth process. In other words, the metaphor of a living tree captures the idea of certain constraints: ‘trees, after all, are rooted.’63 That these roots are the basic principles of a given constitution is supported by the words of Carl Friedrich:

A constitution is a living system. But just as in a living, organic system, such as the human body, various organs develop and decay, yet the basic structure or pattern remains the same with each of the organs having its proper functions, so also in a constitutional system the basic institutional pattern remains even though the different component parts may undergo significant alterations. For it is the characteristic of a system that it perishes when one of its essential component parts is destroyed.64

Therefore, it is not merely a matter of which principles are more fundamental than others. Additionally, as William Harris correctly claimed, it is not an exercise of ‘ranging over the constitutional scheme to pick out elements that might arguably be more fundamental in the hierarchy of values’; rather, ‘a Constitutional provision would be fundamental only in terms of some articulated political theory that makes sense of the whole Constitution’.65 Even Richard Albert, who criticized attempts to create a hierarchy of constitutional norms that ‘threatens to deplete the text of its intrinsic value as an institution whose authority applies equally, fairly and predictably to citizens and the state’,66 claimed more recently that in order for the US Constitution to remain internally coherent, the First Amendment’s protections of democratic expression are to be regarded as implicitly unamendable.67 The idea of a hierarchy of norms within foundational structuralism is meant to examine whether a constitutional principle or institution is so basic to the constitutional order that to change it, and thereby look at the whole constitution, would be to change the entire constitutional identity.

Constitutional identity

‘A constitution’, as Peter Häberle states, ‘is not merely a juridical text or a normative set of rules, but also an expression of a cultural state of development, a means of cultural expression by “the people”, a mirror of cultural heritage and the foundation of its expectations’.68 Constitutions are designed to reflect society’s identity and delineate the highest principles shared by the State’s citizens, and each constitutional system has its own basic principles.69 This is supported by Gary Jacobsohn, who demonstrates how a constitutional identity represents a combination of commitments that are expressive of universal values intermingled with the nation’s particularistic culture, history, customs, values, tradition, and history, as well as its future aspirations. Since constitutional identity emerges from the interplay of inevitably disharmonic elements, it is never a static thing.70 Indeed, it can always be reinterpreted and reconstructed, or it can evolve with time through the use of the constitutional amendment process.71 Yet, as Jacobsohn remarks, changes to the constitutional identity, ‘however significant, rarely culminate in a wholesale transformation of the constitution’, because a nation usually aims to remain faithful to a ‘basic structure’ that comprises its constitutional identity. ‘It is changeable’, he writes, ‘but resistant to its own destruction’.72 Unamendability is the ultimate expression of this resistance.

The identity, according to the foundational structuralism theory, is ‘the normative identity of the Constitution, supported by a coherent interpretation of its core constitutional principles or basic features’.73 It is the constitution’s ‘genetic code’, and destruction of this identity results in the formation of a new constitution. This idea may extend back to Aristotle, who believed that a polis should be identified with its constitution. Aristotle asked: ‘on what principles ought we to say that a state has retained its identity, or, conversely, that it has lost its identity and become a different state?’ Aristotle’s answer was that ‘a change in the polis’s identity cannot be considered a mere reform, but the birth of a new regime’ due to a disruption of its essential commitments.74 This is crucial for the idea of implicit unamendability, as Murphy argues:

Thus an ‘amendment’ corrects or modifies the system without fundamentally changing its nature: An ‘amendment’ operates within the theoretical parameters of the existing Constitution. A proposal to transform a central aspect of the compact to create another kind of system—for example, to change a constitutional democracy into an authoritarian state … would not be an amendment at all, but a re-creation of both the covenant and its people. That deed would lie outside the authority of any set of governmental bodies, for all are creatures of the people’s agreement. Insofar as officials destroy that compact, they destroy their own legitimacy.75

True, one should not confuse constitutional preservation with constitutional stagnation. Conversely, constitutional changes should not be tantamount to constitutional metamorphosis. The analogy used by Joseph Raz to explain this compares a constitution to a house that was built two hundred years ago: ‘[the] house had been repaired, added to, and changed many times since. But it is still the same house and so is the constitution … the point of my coda is to warn against confusing change with loss of identity…’76

Why is it not the prerogative of the amendment power to change even the basic foundations of the system? James McClellan, for example, asserted that even foolish amendments which violate the spirit of the constitution still represent ‘the prerogative of the American people under Article V to make fools of themselves and to abolish their form of government and replace it with a new system if that is their wish’.77 McClellan is correct that it is the prerogative of ‘the people’ to change their system of government, but this cannot be made through the amendment procedure. This should be ‘the people’s exercising their constituent power, not the old constitution’s benediction, that validates the new order’.78 This is precisely the distinction between the primary and secondary constituent powers; to use Jacques Baguenard’s metaphor, the primary constituent power is the power to build a new structure and the secondary constituent power is the power to make alterations to an existing building.79 As the constitution’s core cannot be altered without destroying the whole constitution, the delegated amendment power cannot use the power entrusted to it for quashing the constitution or its fundamentals so that it loses its identity. Thus an amendment of the essential and pivotal principles of the constitution’s identity to the extent that the amendment can be viewed no longer as a genuine amendment, but rather as the genesis of a new constitution, would be a constitutional breakdown.80

The expressio unius est exclusio alterius maxim

The existence of implicit unamendability is contentious. Had a constitution’s framers intended to prohibit certain amendments, one could reasonably expect them to have included a provision to that effect. This problem obviously exists with regard to those constitutions that lack any unamendable provisions, and it is aggravated when the constitution contains certain explicit unamendable provisions. According to the maxim expressio unius est exclusio alterius, the existence of explicit unamendability provides evidence that the constitution-makers considered limits on the amendment power, the omission of other limitations was intentional, and implicit unamendability should therefore be excluded.81 John Vile argues that this is ‘perhaps the strongest argument against implicit limits on the amending process’.82 In 1871, George Helm Yeaman attacked the notion of implicit limitations on the amendment power and stated:

We cannot have two constitutions, one of the letter and one of the spirit, the letter amendable and the spirit not. Letter, spirit and approved judicial construction all go to make up the constitution. That constitution by its own terms is susceptible of amendment, and the amendments, when adopted in the way pointed out, are binding and must be obeyed.83

This is akin to David Dow’s argument that Article V of the US Constitution is exclusive and that its words ‘mean what they say’.84

Such arguments are important, but they are not entirely resounding. First, one should note Otto Pfersmann’s position that the approach taken by scholars such as Gözler, for whom no limitations exist on the amendment power apart from those explicitly included in the constitution,85 is too narrow. ‘Many things’, Pfersmann notes, ‘are indirectly explicit, that is they are contained in the meaning of the norm-formulation, accessible though interpretation’.86

Second, any organ established within the constitutional scheme to amend the constitution cannot modify the basic principles supporting its constitutional authority, even in the absence of explicit unamendability. Explicit and implicit unamendability are not mutually exclusive; rather, they are mutually reinforcing. Explicit unamendability should thus be regarded as confirmation or a ‘valuable indication’ that the amendment power is limited, but not as an exhaustive list of limitations.87

Examples from comparative law strengthen this presumption. For instance, under the 1961 Turkish Constitution, the provision establishing the republican form of the State (Art. 1) was explicitly unamendable (Art. 9). Even so, the Turkish Constitutional Court held in 1965 that the unamendability of the form of State implicitly extends also to the characteristics of the republic (Art. 2) and the essence of the 1961 constitution. Later, the Court reaffirmed that there are certain principles which comprise the constitution’s ‘spirit and philosophy’ and its competence to examine whether amendments do not damage the ‘coherence and system of the constitution’.88 Likewise, the Italian Constitution of 1947 includes an explicit unamendability according to which ‘The republican form of the state may not be changed by way of constitutional amendment’ (Art. 139). Italian scholars contend that additionally, fundamental constitutional principles such as democracy, inviolable rights, and the rigidity of the constitution itself are implicitly unamendable.89 The Italian Constitutional Court accepted this approach in its decision 1146/1988, stating:

The Italian Constitution contains some supreme principles that cannot be subverted or modified in their essential content … Such are principles that the Constitution itself explicitly contemplates as absolute limits to the power of constitutional revision, such as the republican form … as well as principles that, although not expressly mentioned among those not subject to the principle of constitutional revision, are part of the supreme values on which the Italian Constitution is based.90

Therefore, notwithstanding the explicit unamendable provision, the Constitutional Court recognized further implicit unamendability of the supreme constitutional principles.91 Similarly, in Puerto Rico—unique due to its character as an unincorporated territory of the United States—the Supreme Court states in an obiter that, in the exercise of its sovereign power, ‘the people’ included in Article vii(3) of the Constitution expressed unamendability so as to not ‘alter the republican form of government established by it or abolish its bill of rights’. However, there are also implied limitations, the existence of which can be deduced as a logical consequence of the assumptions upon which the constitutional system, considered as a whole, rests.92

It is with this understanding that one can accept Maurice Hauriou’s claim that, in addition to the explicit unamendability of the republican form of government in the French Constitution, there are always additional implicit supra-constitutional principles that do not require a text for their existence.93 Even Georges Burdeau, who took a formal approach in his doctoral thesis, later changed his mind to claim:

[T]o say that the power of revision is limited, is to support, not only that it is bound by the terms of form and procedure made its exercise by the text—which is obvious—but also that it is incompetent, basically, to repeal the existing constitution and develop a new one … by repealing it, it would destroy the basis of its own jurisdiction.94

Indeed, an argument in favour of implicit unamendability may seem contradictory in that it both upholds and rejects the constitution: in one breath it views the constitution as so sacred that interference with its basic principles is prohibited, while in the next it claims that the constitution’s own text and amendment procedure must be ignored or recognized only to a limited extent.95 However, to demonstrate the absurdity of relying solely on explicit unamendability, imagine the extreme examples of amendments providing that the constitution has no legal validity or that the parliament extends its term indefinitely without elections.96 Such amendments undermine the entire legitimacy of the constitutional order. Restricting ourselves to a formalistic approach, according to which the amendment power is solely limited by explicit unamendability, would mean that such amendments would be ‘constitutional’ in the absence of express limitations to the contrary. Yet, it would be absurd to include a provision in every constitution stating that it is prohibited to use the amendment process to destroy the constitution itself, because it is evident that the delegated amendment power cannot destroy the fundamental political system to which it owes its existence. Just as in private law there is the principle of ex turpi causa non oritur actio, meaning ‘no action may be founded on illegality or immorality’, so too the constitutional process cannot be used to undermine the constitutional regime itself.97 The all-encompassing idea underlying amendment provisions in the first place was the desire to preserve the constitution. While infallibility is not an attribute of a constitution, its fundamental character and basic structure cannot be overlooked. Otherwise the power to amend may include the power to destroy the constitution, and that would be reductio ad absurdum.98 Thus, the best response to the expressio unius est exclusio alterius argument, meaning ‘express mention of one thing excludes all others’, is that ‘what is logically impossible does not need to be positively prescribed’.99

In reply to this ‘amendophobia’, or the fear that the amendment power will be misused to undermine democracy or constitutionalism, Lester Orfield has argued that the possibility of misuse of power should not be the test for the power’s existence. Moreover, even if a misuse of the amendment power occurs, ‘it occurs at the hands of a special organization of the nation … the people, or at least the highest agent of the people, and one exercising sovereign powers … it seems anomalous to speak of “abuse” by such a body’.100 These claims should be refuted. While it is true that the mere possibility of misuse should not be the test of the existence of a power, it is unclear why it should not be a test for its scope, especially if ignoring limitations on scope may not only bring absurd results but may also subvert the entire notion of constitutionalism. Furthermore, the amendment power, though an extraordinary one, is not sovereign. It is indeed different from ordinary governmental power, but it is still an agent of ‘the people’ that is capable of abusing its power. Note that this should not be dismissed as a mere ‘argument of fear’. Even objectors to the notion of implicit unamendability have to admit that the Indian ‘Basic Structure Doctrine’ was created as a response to misuse of the amendment power and proved that unamendability may avert unauthorized usurpation of power and preserve democracy.101 True, implicit unamendability may be seen as an imperfect mechanism; yet, at the very least, it is a necessary evil.102

Textualism

The idea that the amendment power is inherently limited in its scope finds a textual support in the literal meaning of the term ‘amendment’.103 Literally, the Latin word emendere means ‘to remove lies’ or ‘to correct fault’. Based on this textual meaning, Murphy argues that amendments cannot deconstitute and reconstitute. However, amendments that would modify the basic principles upon which ‘the people’ agree to become a nation, or that made the nation-formation possible, would not ‘amend’ but would ‘construct’ a new constitution. The textual basis thus distinguishes between amendments and revolutionary changes to the constitution. An amendment can modify the existing constitution, but must not comprise a change so radical that it has to be regarded as a new constitution. It must operate within the boundaries of the existing constitutional order and its foundational principles.104

The textual argument that the word ‘amendment’ entails limitations is not novel.105 In 1894, the California Supreme Court held that ‘the term “amendment” implies such an addition or change within the lines of the original instrument’,106 and the briefs presented before the US Supreme Court against the validity of the Eighteenth Amendment contained such a textual argument.107 More recently, the textual claim appeared in court decisions that recognized implicit unamendability in India and Bangladesh.108

In contrast to this textual argument, Dudley McGovney claims that ‘amendment’ encompasses, as an element of euphemism, the assumption that it is an improvement. Yet, ‘beyond this euphemistic tinge, amendment as applied to alteration of laws, according to current dictionaries means alteration or change’.109 Hence the term ‘amendment’ includes any change whatsoever. This claim negates the everyday meaning of the word. Even ‘in our everyday discourse’, Sotirios Barber notes, ‘we distinguish amendments from fundamental changes because the word amendment ordinarily signifies incremental improvements or corrections of a larger whole’.110

Gözler also adds to the criticism of the textual argument. It is difficult, he claims, to infer legal consequences from the grammatical interpretation of the word ‘amendment’ in the absence of any explicit limitations. Therefore, the amendment provision can be used in order to change even all of the constitution’s provisions. To support this claim, Gözler provides examples of constitutions such as that of Austria (Art. 44), Spain (Art. 168), and Switzerland (Art. 139), which explicitly allow for their total revision. Additionally, the textual argument may be valid for the English term, but it is not necessarily so in other languages. For example, Francophile constitutions use the term revision (Art. 89 in the French Constitution), the Italian Constitution uses revision (Arts 138–139), the Portuguese Constitution uses revisao, the Spanish Constitution uses reforma, the German Basic Law uses anderung, and the Turkish Constitution uses degisklik. These terms, Gözler claims, do not carry the exact same meaning as ‘amendment’.111

These arguments carry some force, but they are not entirely convincing. From the theory of delegation, it can be argued that in those numerous and limited cases in which constitutions allow for their total revision, this authorization is explicit permission to the delegated amending authority to revise the entire document. However, this is the exception rather than the rule. It can also be argued that when constitutions allow their total revision, this should be regarded as allowing amendments of the entire constitution’s provisions, but not necessarily of the State’s basic premises.112 What is important is the content of the amendment, not its quantum. An amendment of a single provision can be considered a revolutionary change, while revising the entire constitution can still maintain its basic constitutional principles. This applies with even greater force for constitutions that use the terms revision or reform, rather than total reform. Revisions or reforms can indeed make dramatic changes, but they still cannot destroy the existing constitutional order and replace it with one that denies these basic values.113 The meaning of the Latin word reformare is ‘to transform an already existing thing’.114 Last, even in some other languages, the amending provisions carry the same meaning as ‘amendment’. For instance, the Israeli Basic Laws use the Hebrew term tikun (ןוקית‎), which means ‘correction’ or ‘repair’, similar to the old Turkish version, tadilat, which is still often used in the literature. In any event, the vast majority of States’ constitutions use the term ‘amendment’.115

It is true that, self-standing, the textual argument is inconclusive. As Andrew Arato notes, it ‘needs to be supplemented by … a deeper argument’.116 However, taken as an element in the overall theoretical analysis, it may provide additional support to the general claim that the amending power must operate within the existing constitutional framework.117

Conclusion

The theory of delegation and the distinction between the primary and secondary power is the best explanatory theory for constitutional unamendability, which is now increasingly becoming a common feature in comparative constitutionalism. The formal and substantive theories distinguishing between primary and secondary constituent powers are not mutually exclusive, but rather are mutually reinforcing through the theory of delegation.

Being a delegated authority, the amendment power may be explicitly limited both procedurally and substantively. It must abide by these limitations. However, even if the amendment power is not explicitly limited, this is not a case of a ‘blank cheque’ where everything is left to the judgement and discretion of the constitutional amendment authority, as it must achieve a certain objective—that being amending the constitution and not destroying it or replacing it with a new one. It is thus implicitly limited by its nature. ‘The theory of basic structure’, Keshavamurthy correctly claimed, ‘is not a creature of the Judges but a necessary consequence of the organisation of the amending power in the context of a limited government’.118

In Chapter 6, it is argued that not all amendment powers are equally limited; a scale of amendment powers exists depending upon the proximity of the primary constituent power’s appearance through the amendment procedure. This is what is termed ‘the spectrum of amendment powers’ in this book.

Footnotes:

1  See, for example, Elai Katz, ‘On Amending Constitutions: The Legality and Legitimacy of Constitutional Entrenchment’ (1995–6) 29 Colum. J. L. & Soc. Probs. 251; Ernest A. Young, ‘The Constitutive and Entrenchment Functions of Constitutions: A Research Agenda’ (2007– 8) 10 U. Pa. J. Const. L. 399; Russell Patrick Plato, ‘Selective Entrenchment against State Constitutional Change: Subject Matter Restrictions and the Threat of Differential Amenability’ (2007) 82 NYU L. Rev. 1470; N. W. Barber, ‘Why Entrench?’ (2016) 14(2) Int’l J. Const. L. 325.

2  Richard Albert, ‘Constitutional Handcuffs’ (2010) 42(3) Arizona State L. J. 663, 672, 678 fn. 42.

3  Ferdinand Regelsberger, Pandekten: Systematisches Handbuch der Deutschen Rechtswissenschaft I Abt Bd 1, 7 Teil s. 109 (1893) quoted in Hans Kelsen, ‘Derogation’ in Ralph A. Newman (ed.), Essays in Jurisprudence in Honor of Roscoe Pound (American Society for Legal History 1962) 339, 343.

4  Joseph Barthélemy, The Government of France (George Allen & Unwin Ltd. 1924) 23.

5  John W. Burgess, Political Science and Comparative Constitutional Law (Ginn 1893) 172; Robert Valeur, French Government and Politics (Nelson and Sons 1938) 281.

6  Kelsen (n. 3) 343–4.

7  Ibid, 344; Hans Kelsen, General Theory of Law and State (The Lawbook Exchange, Ltd. 2007) 259; Hans Kelsen, General Theory of Norms (Clarendon Press 1991) 109–10. On the loss of efficacy of constitutional provisions, see also Richard Albert, ‘Constitutional Amendment by Constitutional Desuetude’ (2014) 62(3) Am. J. Comp. L. 656.

8  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, 37.

9  Kemal Gözler, Judicial Review of Constitutional Amendments: A Comparative Study (Ekin Press 2008) 52.

10  Julian Rivers, ‘Translator’s Introduction’ in Robert Alexy, A Theory of Constitutional Rights (Oxford University Press 2002) xxi.

11  Carl Schmitt, Constitutional Theory (Jeffrey Seitzer tr., Duke University Press 2008) 150.

12  Mauro Cappelletti and John Clarke Adams, ‘Judicial Review of Legislation: European Antecedents and Adaptations’ (1965–6) 79 Harv. L. Rev. 1207, 1214.

13  Carlos González, ‘Popular Sovereign versus Government Institution Generated Constitutional Norms: When Does a Constitutional Amendment Not Amend the Constitution?’ (2002) 80 Wash. U. L. Q. 127, 131, 153. Likewise, Maria Cahill recently argued that unamendability exists to defend not only specific content, but also the continuing existence of constituent power and its superordinate quality. See Maria Cahill, ‘Ever Closer Remoteness of the Peoples of Europe? Limits on the Power of Amendment and National Constituent Power’ (2016) 75(2) Cambridge L. J. 245, 257.

14  On the distinction between the questions of validity and priority when constitutional norms conflict, see David Feldman, ‘“Which in Your Case You Have Not Got”: Constitutionalism at Home and Abroad’ (2011) 64(1) Current Legal Problems 117, 137–9.

15  Ridwanul Hoque, ‘Eternal Provisions in the Constitution of Bangladesh: A Constitution Once and For All?’ in Richard Albert and Bertil Emrah Oder (eds), An Unconstitutional Constitution? Unamendability in Constitutional Democracies (Springer, forthcoming 2017).

16  Adhemar Esmein, Éléments de droit constitutionnel français et comparé Tome II (8th edn, Societe Anonyme du Recueil Sirey 1928) 545, 549; Léon Duguit, Traité de droit constitutionnel Tome IV (2nd edn, E. de Boccard 1924) 538–41; James Wilford Garner, Political Science and Government (American Book Company 1935) 537; William Bennett Munro, The Governments of Europe (3rd edn, The Macmillan Company 1938) 393; Note, ‘Amending the Constitution of France’ (1926) 10 Const. Rev. 224, 228.

17  Cong. Globe, 36th Cong., 2d Sess. 1263 (1861). See A. Christopher Bryant, ‘Stopping Time: The Pro-slavery and “Irrevocable” Thirteenth Amendment’ (2003) 26 Harv. J. L. & Pub. Pol’y 501; Mark Brandon, ‘The “Original” Thirteenth Amendment and the Limits to Formal Constitutional Change’ in Sanford Levinson (ed.), Responding to Imperfection: The Theory and Practice of Constitutional Amendment (Princeton University Press 1995) 215.

18  Andrew Friedman, ‘Dead Hand Constitutionalism: The Danger of Eternity Clauses in New Democracies’ (2011) 4 Mex. L. Rev. 77, 80.

19  Virgilio Afonso da Silva, ‘A Fossilised Constitution?’ (2004) 17(4) Ratio Juris 454, 460.

20  Kent Greenawalt, ‘The Rule of Recognition and the Constitution’ (1987) 85(4) Mich. L. Rev. 621, 633. Here, an interesting question arises: what if an amendment was enacted not through the ordinary amendment process, but rather through an invocation of the primary constituent power? According to the same logic, since it is a norm enacted by the higher authority, it would be possible for it to establish its unamendability.

21  Jon Elster, Ulysses Unbound. Studies in Rationality, Precommitment and Constraints (Cambridge University Press 2000) 102.

22  Paulo Ferreira da Cunha, ‘Constitutional Sociology and Politics: Theories and Memories’ (2013) 5 Silesian J. Leg. Stud. 11, 25. On this amendment, see Víctor Ferreres Comella, Constitutional Courts & Democratic Values—A European Perspective (Yale University Press 2009) 207; Jonatas E. M. Machado, ‘The Portuguese Constitution of 1976—Half-life and Decay’ in Xenophon Contiades (ed.), Engineering Constitutional Change: A Comparative Perspective on Europe, Canada and the USA (Routledge 2013) 273, 286–97.

23  See debates in da Silva (n. 19) 456–8; Eivind Smith, ‘Old and Protected? On the “Supra-Constitutional” Clause in the Constitution of Norway’ (2011) 44(3) Isr. L. Rev. 369, 375; Laurence H. Tribe, American Constitutional Law (3rd edn, Foundation Press 2000) 111–14.

24  Douglas Linder, ‘What in the Constitution Cannot Be Amended?’ (1981) 23 Ariz. L. Rev. 717, 729.

25  Georges Liet-Veaux, ‘La “fraude a la constitution”: Essai d’une analyse juridiques des révolutions communitaires récentes: Italie, Allemand, France’ (1943) 59 Revue du droit et de science politique en France et a l’etranger 116.

26  Walter F. Murphy, Constitutional Democracy: Creating and Maintaining a Just Political Order (Johns Hopkins University Press 2007) 504. See also Akhil Reed Amar, America’s Constitution: A Biography (Random House 2006) 293 (calling it a ‘sly scheme’) and Thomas E. Baker, ‘Exercising the Amendment Power to Disapprove of Supreme Court Decisions: A Proposal for a “Republican Veto”’ (1994) 22 Hastings Const. L. Q. 325, 340 fn. 47 (calling it ‘disingenuous’).

27  Cummings v. Missouri (1867) 71 U.S. 277, 325. On this maxim, see D.K. Singh, ‘“What Cannot be Done Directly Cannot be Done Indirectly”: Its Meaning and Logical Status in Constitutionalism’ (1966) 29 Mod. L. Rev. 273.

28  Jason Mazzone, ‘Unamendments’ (2005) 90 Iowa L. Rev. 1747, 1818.

29  R. D. Lumb, ‘Fundamental Law and the Processes of Constitutional Change in Australia’ (1978) 9 Fed. L. Rev. 148, 170. On the logical problems inherent in ‘self-referring laws’, see Peter Suber, The Paradox of Self-Amendment: A Study of Logic, Law, Omnipotence, and Change (Peter Lang Publishing 1990); H. L. A. Hart, ‘Self-referring Laws’ in Essays in Jurisprudence and Philosophy (Oxford University Press 1983) 170; Alf Ross, ‘On Self Reference as a Puzzle in Constitutional Law’ (1969) 78 Mind 1.

30  Michael Stokes Paulsen, ‘The Constitution of Necessity’ (2003–4) 79 Notre Dame L. Rev. 1257.

31  This was acknowledged in Kesavanda Bharati v. State of Kerala, AIR 1973 SC 1461, 1426: ‘Article 368 cannot be construed as to embody the death wish of the Constitution or provide sanction for what may perhaps be called as lawful “Harakiri”.’ See H. R. Khanna, Judicial Review or Confrontation (Macmillan Co. of India 1977) 11.

32  Sampson R. Child, ‘Revolutionary Amendments to the Constitution’ (1926) 10 Const. Rev. 27, 28.

33  Thomas M. Cooley, ‘The Power to Amend the Federal Constitution’ (1893) 2 Mich. L. J. 109, 118–20. See, similarly, Landon W. Magnusson, ‘Selling Ourselves into Slavery: An Originalist Defense of Tacit Substantive Limits to the Article V Amendment Process and the Double-Entendre of Unalienable’ (2010) 87 Uni. Detroit Mercy L. Rev. 415.

34  Schmitt (n. 11) 150; William L. Marbury, ‘The Limitations upon the Amending Power’ (1919–20) 33 Harv. L. Rev. 223, 225; Upendra Baxi, ‘Some Reflections on the Nature of Constituent Power’ in Rajeev Dhavan and Alice Jacob (eds), Indian Constitution—Trends and Issues (N.M. Tripathi Private Ltd. 1978) 122, 143; Ulrich K. Preuss, ‘The Implications of “Eternity Clauses”: The German Experience’ (2011) 44(3) Isr. L. Rev. 429, 435; William F. Harris II, The Interpretable Constitution (The Johns Hopkins University Press 1993) 183.

35  Wesley N. Hohfeld, ‘Fundamental Legal Conceptions as Applied in Judicial Reasoning’ (1917) 26 Yale L. J. 710, 727.

36  Howard Newcomb Morse, ‘May an Amendment to the Constitution be Unconstitutional?’ (1948–9) 53 Dick. L. Rev. 199.

37  Gerhard Anschutz, ‘Three Guiding Principles of the Weimar Constitution’ in Arthur J. Jacobson and Bernhard Schlink (eds), Weimar—A Jurisprudence of Crisis (University of California Press 2002) 132, 146.

38  Ivo Duchacek, Power Maps: Comparative Politics of Constitutions (ABC-Clio 1973).

39  Note that foundational structuralism is not to be understood in terms of natural law, but rather as the ‘“spirit” of legality that pervades the forms of constitutionalism to which societies commit themselves’. See Mark Walters, ‘Written Constitutions and Unwritten Constitutionalism’ in Grant Huscroft (ed.), Expounding the Constitution: Essays in Constitutional Theory (Cambridge University Press 2008) 245, 261.

40  Smith (n. 23) 377. See also Robert von Moschzisker, ‘Dangers in Disregarding Fundamental Conceptions when Amending the Federal Constitution’ (1925) 11 Cornell L. Rev. 1; Dietrich Conrad, ‘Limitation of Amendment Procedures and the Constituent Power’ (1970) 15–16 Indian Y. B. Int’l. Aff. 347, 418–19; S. P. Sathe, ‘Limitations on Constitutional Amendment: “Basic Structure” Principle Re-examined’ in Dhavan and Jacob (n. 34) 179, 187.

41  Dietrich Conrad, ‘Constituent Power, Amendment and Basic Structure of the Constitution: A Critical Reconsideration’ (1977–8) 6–7 Delhi L. Rev. 17.

42  Ibid. Thoma believed that the opinion that the amendment power must be limited ‘fails to appreciate the idea … of free, democratic self-determination’. See Richard Thoma, ‘The Reich As a Democracy’ in Jacobson and Schlink (n. 37) 157, 163.

43  Baxi (n. 34) 127.

44  This idea is elaborated on in Yaniv Roznai, ‘Legisprudence Limitations on Constitutional Amendments? Reflections on the Czech Constitutional Court’s Declaration of Unconstitutional Constitutional Act’ (2014) 8(1) ICLJ 29–57. On temporary constitutional provisions enacted for narrow circumstances, see Yaniv Roznai, ‘Review of Sofia Ranchordás, Constitutional Sunsets and Experimental Legislation: A Comparative Perspective (Edward Elgar, 2014)’ (2016) 64(3) Am. J. Comp. L. 790, 792.

45  Carl Joachim Friedrich, The Philosophy of Law in Historical Perspective (2nd edn, University of Chicago Press 1963) 221. See also A. M. Holding, ‘Perils to be Apprehended from Amending the Constitution’ (1923) 57 Am. L. Rev. 481, 489–90; T. S. Rama Rao, ‘Constitutional Amendments, Judicial Review and Constitutionalism in India’ in Dhavan and Jacob (n. 34) 108, 112.

46  Constitutions usually include provisions regarding basic governmental structures and the relations between the main powers and functions of government, basic values and commitments, and human rights. See Ruth Gavison, ‘What Belongs in a Constitution?’ (2002) 13 Const. Polit. Econ. 89.

47  Bruce Ackerman, ‘Constitutional Politics/Constitutional Law’ (1989–90) 99 Yale L. J. 453, 525.

48  1BVerfGE 14, 32 (1951). See Donald P. Kommers, The Constitutional Jurisprudence of the Federal Republic of Germany (Duke University Press 1989) 54–5; Donald P. Kommers, ‘German Constitutionalism: A Prolegomenon’ (1991) 40 Emory L. J. 837, 852.

49  Walter F. Murphy, ‘An Ordering of Constitutional Values’ (1979–80) 53 S. Cal. L. Rev. 703, 756–7. See also Walter F. Murphy, ‘Slaughter-house, Civil Rights, and Limits on Constitutional Change’ (1987) 32 Am. J. Juris. 1, 12–14; Walter F. Murphy, ‘Consent and Constitutional Change’ in James O’Reilly (ed.), Human Rights and Constitutional Law: Essays in Honour of Brian Walsh (Round Hall Press 1992) 123, 141–6; Walter F. Murphy, ‘Merlin’s Memory: The Past and Future Imperfect of the Once and Future Polity’ in Levinson (n. 17) 163; Murphy (n. 26) 497–529. Elsewhere, Murphy claimed that the right to privacy is also so deeply embedded in the constitution that removing it would abrogate the constitution altogether. See Walter F. Murphy, ‘The Right to Privacy and Legitimate Constitutional Change’ in Shlomo Slonim (ed.), The Constitutional Bases of Political and Social Change in the United States (Praeger 1990) 213.

50  John Rawls, Political Liberalism (Columbia University Press 1993) 238–9. See Charles A. Kelbley, ‘Are There Limits to Constitutional Change? Rawls on Comprehensive Doctrines, Unconstitutional Amendment, and the Basis of Equality’ (2003–4) 72 Fordham L. Rev. 1487, 1503–6.

51  Samuel Freeman, ‘Political Liberalism and the Possibility of a Just Democratic Constitution’ (1994) 69 Chi. Kent L. Rev. 619, 663.

52  Stephen Macedo, Liberal Virtue: Citizenship, Virtue, and Community in Liberal Constitutionalism (Clarendon Press 1990) 182–3.

53  Laurence H. Tribe, ‘A Constitution We Are Amending: In Defense of a Restrained Judicial Role’ (1983) 97 Harv. L. Rev. 433.

54  Laurence H. Tribe, The Invisible Constitution (Oxford University Press 2008) 33–4. As examples of radical amendments, Tribe mentions amendments repealing the republican form of government or repudiating the rule of law.

55  See, for example, Joel Colón-Ríos, ‘The Legitimacy of the Juridical: Constituent Power, Democracy, and the Limits of Constitutional Reform’ (2010) 48 Osgoode Hall L. J. 199, 221–8.

56  Kemal Gözler, ‘Sur la validité des limites à la révision constitutionnelle déduites de l’esprit de la constitution’ (1997) 31 Annales de la faculté de droit d’İstanbul 109.

57  Dietrich Conrad, ‘Basic Structure of the Constitution and Constitutional Principles’ in Soli J. Sorabjee (ed.), Law and Justice: An Anthology (Universal Law Pub. Co. 2003) 186.

58  Conrad (n. 41) 379.

59  AIR 1973 SC 1861 at para. 1431; 41 DLR 1989 App. Div. 165 at para. 415.

60  Conrad (n. 57) 190.

61  William H. Rehnquist, ‘The Notion of a Living Constitution’ (1975–6) 54 Tex. L. Rev. 693; Aileen Kavanagh, ‘The Idea of a Living Constitution’ (2003) 16 Can. J. L. & Jur. 55–6; Bruce Ackerman, ‘The Living Constitution’ (2006–7) 120 Harv. L. Rev. 1737, 1742.

62  Arthur Selwyn Miller, ‘Notes on the Concept of the “Living” Constitution’ (1962–3) 31 Geo. Wash. L. Rev. 881, 884. See also David A. Strauss, The Living Constitution (Oxford University Press 2010) 115–18.

63  Vicki C. Jackson, ‘Constitutions as “Living Trees”? Comparative Constitutional Law and Interpretive Metaphors’ (2006–7) 75 Fordham L. Rev. 921, 943.

64  Carl Joachim Friedrich, Man and His Government (McGraw-Hill Book Company Inc. 1963) 272.

65  Harris (n. 34) 188.

66  Albert (n. 2) 683.

67  Richard Albert, ‘The Unamendable Core of the United States Constitution’ in András Koltay (ed.), Comparative Perspectives on the Fundamental Freedom of Expression (Wolters Kluwer Ltd. 2015) 13, 24–31.

68  Peter Häberle, ‘The Constitutional State and Its Reform Requirements’ (2000) 13(1) Ratio Juris 77, 79.

69  Simone Chambers, ‘Democracy, Popular Sovereignty, and Constitutional Legitimacy’ (2004) 11 Constellations 153, 158–61; Hanna Lerner, Making Constitutions in Deeply Divided Societies (Cambridge University Press 2011) 4; Sheldon S. Wolin, The Presence of the Past—Essays on the State and the Constitution (John Hopkins University Press 1990) 8, 9.

70  See Gary Jeffrey Jacobsohn, ‘Constitutional Identity’ (2006) 68(3) The Review of Politics 361–97; Gary Jeffrey Jacobsohn, Constitutional Identity (Harvard University Press 2010); Gary Jeffrey Jacobsohn, ‘The Disharmonic Constitution’ in Jeffrey K. Tulis and Stephen Macedo (eds), The Limits of Constitutional Democracy (Princeton University Press 2010) 47.

71  Michel Rosenfeld, ‘The Identity of the Constitutional Subject’ (1994–5) 16 Cardozo L. Rev. 1049, 1050–1; Michel Rosenfeld, The Identity of the Constitutional Subject: Selfhood, Citizenship, Culture, and Community (Routledge 2010) 209; Rosalind Dixon, ‘Amending Constitutional Identity’ (2011–12) 33 Cardozo L. Rev. 1847.

72  Jacobsohn, ‘Constitutional Identity’ (n. 70) 363; Jacobsohn, Constitutional Identity (n. 70) 325–6.

73  Sudhir Krishnaswamy, Democracy and Constitutionalism in India: A Study of the Basic Structure Doctrine (Oxford University Press 2010) 118.

74  Aristotle, The Politics of Aristotle (Sir Ernest Barker tr., Clarendon Press 1946) 98. See also Aristotle, The Politics and the Constitution of Athens (Stephen Everson ed., 2nd edn, Cambridge University Press 1996) 17. The question of change and identity is indeed an old one. See, for example, the ‘ship of Theseus’ debate in the writings of Plutarch and Thomas Hobbes. See Norman Swartz, Beyond Experience: Metaphysical Theories and Philosophical Constraints (2nd edn, University of Toronto Press 2001) 328–57.

75  Walter F. Murphy, ‘Constitutions, Constitutionalism and Democracy’ in Douglas Greenberg et al. (eds), Constitutionalism & Democracy—Transitions in the Contemporary World (Oxford University Press 1993) 3, 14.

76  Joseph Raz, Between Authority and Interpretation (Oxford University Press 2009) 370. For a similar analogy, see Mahendra Pal Singh, ‘Constitution as Fundamental Law: Preserving Its Identity with Change’ (2011) 3 Jindal Global L. Rev. 21, 35–6.

77  James McClellan, Liberty, Order, and Justice: An Introduction to the Constitutional Principles of American Government (3rd edn, Liberty Fund 2000) 563–6.

78  Murphy (n. 75) 14.

79  Jacques Baguenard, ‘La constitution’ in Jean-Marie Auby (ed.), Droit public (2nd edn, Economica 1989) 32; cited in Kemal Gözler, Pouvoir constituant (Ekin Press 1999) 42.

80  Samuel Freeman, ‘Original Meaning, Democratic Interpretation, and the Constitution’ (1992) 21 Phil. & Pub. Aff. 3, 42; George R. Wright, ‘Could a Constitutional Amendment be Unconstitutional?’ (1990–1) 22 Loy. U. Chi. L. J. 741, 747, 764.

81  See, for example, Albert E. Pillsbury, ‘The War Amendment’ (1909) 189 No. Am. Rev. 741, 742–3. On this maxim, see Clifton Williams, ‘Expressio Unius Est Exclusio Alterius’ (1930–1) 15 Marq. L. Rev. 191; Etienne Mureinik, ‘Expressio Unius: Exlusio Alterius’ (1987) 104 S. African L. J. 264.

82  John R. Vile, ‘Limitations on the Constitutional Amending Process’ (1985) 2 Const. Comment. 373, 383.

83  George Helm Yeaman, The Study of Government (Little, Brown and Co. 1871) 710–11.

84  David R. Dow, ‘When the Words Mean What We Believe They Say: The Case of Article V’ (1990–1) 76 Iowa L. Rev. 1; David R. Dow, ‘The Plain Meaning of Article V’ in Levinson (n. 17) 127.

85  Gözler (n. 9) 102.

86  Otto Pfersmann, ‘Unconstitutional Constitutional Amendment: A Normativist Approach’ (2012) 67 ZÖR 81, 103. C.J. Sikri’s opinion in Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461, para. 210 takes a similar approach. See also Aharon Barak, ‘On Constitutional Implications and Constitutional Structure’ in David Dyzenhaus and Malcolm Thorburn (eds), Philosophical Foundations of Constitutional Law (Oxford University Press 2016) 53, 65.

87  Conrad (n. 40) 379; Schmitt (n. 11) 152.

88  Turkish Constitutional Court, decision No 1965/40, 4 AMKD 290, 329 (26 September 1965) (obiter dicta; Turkish Constitutional Court, decision No 1970/37, 9 AMKD 416, 428–89 (3 April 1971); see Tarik Olcay, ‘Unamendability of Amendable Clauses: The Case of the Turkish Constitution’ in Albert and Oder (n. 15).

89  See in Paolo Carrozza, ‘Constitutionalism’s Post-Modern Opening’ in Martin Loughlin and Neil Walker (eds), The Paradox of Constitutionalism (Oxford University Press 2007) 168, 174–5; Tania Groppi, ‘Constitutional Revision in Italy—A Marginal Instrument For Constitutional Change’ in Contiades (n. 22) 203, 210; Paolo Galizzi, ‘Constitutional Revisions and Reforms: The Italian Experience’ in Mads Andenas (ed.), The Creation and Amendment of Constitutional Norms (BIICL 2000) 235, 241; Carlo Fusaro, ‘Italy’ in Dawn Oliver and Carlo Fusaro (eds), How Constitutions Change—A Comparative Study (Hart Publishing 2011) 211, 215.

90  Corte Const. Judgment No. 1146 of 15 December 1988, <http://www.cortecostituzionale.it/actionSchedaPronuncia.do?anno=1988&numero=1146>. The English quotation is from Lois F. Del Duca and Patrick Del Duca, ‘An Italian Federalism? The State, Its Institutions and National Culture as Rule of Law Guarantor’ (2006) 54 Am. J. Comp. L. 799, 800–1.

91  Jean-Claude Escarras, ‘Presentation du rapport Italien de Massimo Luciani’ and Massimo Luciani, ‘La revision constituzionale in Italia’ in Louis Favoreu and Otto Pfermann (eds), La revision de la constitution (Economica 1993) 105, 112–38; Pietro Faraguna, Ai confini della Costituzione. Principi supremi e identità costituzionale (FrancoAngeli 2015) 69–72.

92  Berríos Martínez v. Roselló González, II, 137 d.p.r. 195 (1994), 201, 221. See Joel I. Colón-Ríos, La Constitución de la democracia (Universidad Externado de Colombia 2013) 227–8.

93  Maurice Hauriou, Precis de droit constitutionnel (1st edn, Sirey 1923) 297.

94  Georges Burdeau, Traite de science politique (3rd édn, LGDJ 1983) 231–2, quoted in Gözler, Pouvoir constituant (n. 79) 94 (my translation). For Burdeau’s early thesis see Georges Burdeau, Essai d’une théorie de la révision des lois constitutionnelles en droit Français (Thèse, Faculté de droit de Paris 1930) 78–83.

95  George Washington Williams, ‘What, If Any, Limitations Are There upon the Power to Amend the Constitution of the United States?’ (1928) 62 Am. L. Rev. 529, 543.

96  As Black once wrote, ‘these are … cartoon illustrations. But the cartoon accurately renders the de jure picture and seems exaggerated only because we now conceive that at least some of these actions have no appeal to anybody.’ See Charles L. Black, Jr., ‘The Proposed Amendment of Article V: A Threatened Disaster’ (1963) 72 Yale L. J. 957, 959.

97  Cf. Judge Landau’s opinion in the Israeli Supreme Court decision E.A. (Election Appeal) 1/65, Yeredor v. Chairman, Central Election Committee for the Sixth Knesset, 19 P.D. 365 (1965).

98  V. R. Krishna Iyer, A Constitutional Miscellany (2nd edn, Eastern Book Company 2003) 1, 2. As Justice Ringera stated in the case which adopted the basic structure doctrine in Kenya: ‘Parliament has no power to and cannot in the guise or garb of amendment either change the basic features of the Constitution or abrogate and enact a new Constitution. In my humble view, a contrary interpretation would lead to a farcical and absurd spectacle.’ See Njoya & Others v. Attorney General & Others, [2004] LLR 4788 (HCK), para. 61, <http://www1.chr.up.ac.za/index.php/browse-by-country/kenya/1126.html>

99  da Silva (n. 19) 459.

100  Lester B. Orfield, Amending the Federal Constitution (University of Michigan Press 1942) 123–4.

101  Katz (n. 1) 273; A. Lakshminath, ‘Justiciability of Constitutional Amendments’ in Dhavan and Jacob (n. 34) 144, 159; Vijayashri Sripati, ‘Toward Fifty Years of Constitutionalism and Fundamental Rights in India: Looking Back to See Ahead (1950–2000)’ (1998) 14(2) Am. U. Int’l. L. Rev. 413, 480; Snigdha Nahar and Abhishek Dadoo, ‘Constituent Power & Sovereignty: In Light of Amendments to the Indian Constitution’ (2008) 1 NUJS L. Rev. 559, 571.

102  Cf. Lech Garlicki and Zofia A. Garlicka, ‘Review of Constitutionality of Unconstitutional Amendments (An Imperfect Response to Imperfections?)’ (2012) 1 Anayasa Hukuku Dergisi: Journal of Constitutional Law 145.

103  See, for example, Howard Schweber, The Language of Liberal Constitutionalism (Cambridge University Press 2007) 137; Richard S. Kay, ‘Legal Rhetoric and Revolutionary Change’ (1997) 7 Caribbean L. Rev. 161, 163; Joan Schaffner, ‘The Federal Marriage Amendment: To Protect the Sanctity of Marriage or Destroy Constitutional Democracy?’ (2005) 54 Am. Univ. L. Rev. 1487, 1493.

104  Murphy, ‘Merlin’s Memory’ (n. 49) 177; Murphy, ‘Slaughter-house’ (n. 49) 12–13; Murphy (n. 26) 506; Murphy (n. 75) 3, 14.

105  See, for example, Jefferson Davis, The Rise and Fall of the Confederate Government (D. Appleton and Company 1881) 197; Judge M. F. Morris, ‘The Fifteenth Amendment to the Federal Constitution’ (1909) 189 No. Am. Rev. 82, 85.

106  Livermore v. Waite, 36 P. 424, 426 (Cal. 1894).

107  See W. F. Dodd, ‘Amending the Federal Constitution’ (1921) 30(4) Yale L. J. 321, 330–2.

108  Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461; see Justice Khanna, paras 1426–1427 contra Justice Ray, para. 846; Anwar Hossain Chowdhury v. Bangladesh, 41 DLR 1989 App. Div. 165 (Judge B.H. Chowdhury, para. 196; Judge Shahabuddin, para. 336, 417).

109  Dudley O. McGovney, ‘Is the Eighteenth Amendment Void Because of Its Contents?’ (1920) 20 Colum. L. Rev. 499, 514. See also Orfield (n. 100) 108.

110  Sotirios A. Barber, On What the Constitution Means (Johns Hopkins University Press 1984) 43.

111  Gözler (n. 9) 69–71.

112  Schmitt (n. 11) 152.

113  Walter Murphy, ‘Staggering toward the New Jerusalem of Constitutional Theory: A Response to Ralph F. Gaebler’ (1992) 37 Amer. J. Juris. 337, 351–2.

114  Maria Borucka-Arctowa, ‘Innovation and Tradition Against the Background of Revolutionary Changes of Law—A Conceptual and Functional Analysis’ in Zenon Bankowski (ed.), Revolutions in Law and Legal Thought (Aberdeen University Press 1991) 79, 80. See also Kai Nielsen, ‘On the Choice between Reform and Revolution’ in H. J. Johnson, J. J. Leach, and R. G. Muehlmann (eds), Revolutions, Systems, and Theories—Essays in Political Philosophy (D. Reidel Publishing Company 1979) 155, 157.

115  Ashok Dhamija, Need to Amend a Constitution and Doctrine of Basic Features (Wadhwa Nagpur 2007) 223.

116  Andrew Arato, ‘Multi-track Constitutionalism Beyond Carl Schmitt’ (2011) 18(3) Constellations 324, 326.

117  Conrad (n. 40) 416–17.

118  C. V. Keshavamurthy, Amending Power under the Indian Constitution—Basic Structure Limitations (Deep & Deep Publications 1982) 89.