Part III Enforcing Constitutional Unamendability, 7 Understanding Judicial Review of Constitutional Amendments
7 Understanding Judicial Review of Constitutional Amendments
Part I of this book describes how both explicit and implicit limitations may be imposed on the amendment power. Part II goes on to develop a theory that explains the limited nature of amendment powers. Yet, it is one thing to claim that amendment powers are limited; it is quite another to question whether such limitations are legally enforceable, in the sense that they are subject to substantive judicial review by courts. In 1921, Édouard Lambert argued that, owing to two features of American judicial review—namely, the common law technique of judging and substantive jurisprudence that elevates individualism above social values—the practice of judicial review would extend not only to ordinary legislation, but also to constitutional amendments.1 At that time, the ‘threat’ of the possibility that judicial review could extend to constitutional amendments baffled French readers.2 Seven years later, however, Carl Schmitt argued that Lambert’s core thought is correct and ‘will sooner or later show its practical significance’.3 Both predictions were spot on. Today, the issue is no longer a mere theoretical hypothesis; instead, judicial review of constitutional amendments is an existing practice in various jurisdictions.
This chapter directly follows from Part II, in that it deals with the practical implications of a theory of unamendability. In other words, if there are limitations on the scope of the amendment power, what does this mean for the role of the courts? In light of the theoretical approach advanced so far, this chapter aims to explain the rationales behind the practice of judicial review of constitutional amendments.4 In explaining how judicial review of amendments should be conceived, the arguments criticizing unamendability and its judicial enforcement are also addressed.
Rationales Behind Judicial Review of Constitutional Amendments
Against the backdrop of the theory regarding the limited scope of the amendment power, this section explains the main rationales behind the practice of judicial review of constitutional amendments. In the process, it reveals that some of the major theoretical arguments in favour of judicial review of legislation are equally persuasive when applied to substantive judicial review of amendments.
Separation of powers
At first look, judicial review of constitutional amendment seems to be a violation of the principle of separation of powers. Invalidating an amendment on the grounds of unconstitutionality is a constitutive function similar to enacting constitutional legislation, an activity that is imposed upon the primary or secondary constituent authority, not the judiciary. A deeper look reveals otherwise. Part II established the presupposition that the amendment power is limited in scope by its nature as a delegated power. Also, as noted in Part I, the amendment power may be limited explicitly or implicitly. These limitations are then enforced through judicial review of the amendments. Eugene Rostow claims:
The power of constitutional review, to be exercised by some part of the government, is implicit in the conception of a written constitution delegating limited powers … The limitation and separation of powers, if they are to survive, require a procedure for independent mediation and construction to reconcile the inevitable disputes over the boundaries of constitutional power.5
Correspondingly, judicial review of constitutional amendments fulfils the principle of vertical separation of powers, which exists between the primary and secondary constituent power (see Chapter 4).6 The amending authority bears the function set upon it by the constitution, namely to amend the constitution according to the amendment procedure and its possible limitations. It must obey any explicit limits set upon it and preserve the constitution. Amending the constitution is different from destroying it and reconstituting a new constitution (see Chapter 5). The vertical separation between the primary and secondary constituent powers means that the amending authority is independent within its margins as long as it acts within its authority. However, for the separation of powers to remain effective necessitates a mechanism for determining if the amending authority surpassed its limits. This mechanism ought to exist outside of the authority that allegedly surpassed its limits. Importantly, it does not necessarily have to be within the judiciary, although, as is stated in the following section, it fits naturally within the judicial process. The important thing is that the review is conducted by an unbiased organ that ensures that the authorized amending authority does not exceed its delegated power.7 Carré de Malberg offered a similar idea when he linked the possibility of judicial review and the separation of constituent and constituted power.8 Thus conceived, the existence of judicial review in order to control the constitutionality of amendments is essential for an effective distinction between primary and secondary constituent powers.9
The essence of the judicial role
One of the arguments that Chief Justice John Marshall made in favour of judicial review of legislation in the celebrated Marbury v. Madison case was that judicial review is ‘of the very essence of judicial duty’.10 According to this argument, those who apply the law are naturally the courts, and they must determine what the law is. Hence, when courts confront a case in which a law conflicts with the constitution, they must determine which of the conflicting norms governs the case. A similar argument can be made with regard to judicial review of constitutional amendments. The judiciary’s main function is to decide conflicts based upon the constitution and legislation. In order to carry out its role, the court has to interpret the constitution. Kelsen argues that ‘[i]f the constitution contains no provision concerning the question who is authorized to examine the constitutionality of statutes, then the organs competent to apply statutes, that is, especially, the courts, have the power to perform this examination’.11 Likewise, if the constitution is silent on the organ that is authorized to review constitutional amendments, courts, which apply the constitution, should possess this power. Accordingly, when courts face a conflict between constitutional norms, they have to determine, as part of the judicial process, which constitutional norm should be used to resolve a conflict. In other words, therefore, courts must conduct some form of judicial review.
To reiterate, according to the theory of delegation, the body which enforces unamendability does not necessarily have to be a court. However, in most constitutional democracies, it is courts that exercise the power of constitutional review. Also, analytically, there is a great resemblance between judicial review of ordinary legislation and that of constitutional amendments, in that both are done in light of normative obliged standards, whether explicit or implicit. As Klein notes, judicial review of amendments seems to be a similar intellectual operation to ordinary judicial review, at least when it comes to unamendable provisions; it is an examination of the compliance of a given legal standard to a superior standard. In that respect, it does not matter whether the examination is a statute vis-à-vis the constitution or a constitutional amendment vis-à-vis an unamendable provision.12 Therefore, it seems natural, as Ulrich Preuss states, that ‘the institution best suited to verify an unconstitutional constitutional amendment is the constitutional court, which has the authority to review the constitutionality of legislative acts’.13
The rule and supremacy of the constitution
Government’s activities, including its constitutional amendment activities, must be conducted according to the constitution. Judicial review ‘is necessary (or at least extremely important) to maintaining a disinterested eye on the conduct and activities of government’.14 When courts declare an amendment ‘unconstitutional’, they thereby accomplish the principle of the rule of the constitution. Yet, should not the review of amendments be left to the political and social spheres?
Surely, the political body entrusted with the amendment power may be aware of its constitutional limitations. Unfortunately, self-restraint is not always enough. If one cares about the constitution, do we truly want to entrust the role of guardian to the same body that might infringe upon it? In his brief on the Feigenspan v. Bodine case, Elihu Root claimed: ‘it would certainly be vain for a constitution to declare or imply limitations upon the power to amend it, if those limitations could be transgressed at will by the very persons who were intended by the people to be restrained and confined within fixed prescribed limits.’15 The judiciary may impartially determine if the governmental organs observe their constitutional limitations.16 Once we accept the proposition that the amendment power is, like any other power under the constitution, limited and defined, judicial review of constitutional amendments is conceived as a mechanism for maintaining the constitutional limits that bind the secondary constituent power. In that way, judicial review protects not only the ‘the rule of the constitution’, but also its supremacy.
Indeed, one of the arguments that appeared in Marbury v. Madison was that the constitution is supreme law and is superior to ordinary legislation. Therefore, an ordinary law that is contrary to the constitution is void. Without this rule, the constitution would not be supreme. ‘The people’s’ ‘original and supreme will’ organizes the government and may define its limits. If limited authorities can eradicate their own limits at will, there is no purpose for such limitations, as the distinction between a limited and an unlimited government would simply be abolished.17 The principle of supremacy of the constitution requires courts to ensure that governmental bodies exercise all their powers, including constitutional amending powers, in accordance with the constitution. The amendment power is itself a power granted to a constitutional organ by the constitution: ‘it is not and cannot be the whole of [the] Constitution.’18 Judicial review of constitutional amendments thereby accomplishes the supremacy of the constitution; neither the legislature nor the judiciary are supreme—the constitution is. Judicial review of amendments assures the normative superiority of the primary constituent power’s decisions, namely ‘the people’s’ supreme will.
Political process failure
Judicial review, as famously developed by Alexander Bickel, faces a ‘counter-majoritarian’ difficulty, since it undermines the will of the majority by allowing unelected and unaccountable judges to overrule the law-making of ‘the people’s’ elected representatives.19 One of the famous responses to this charge is John Hart Ely’s theory of representation-reinforcing. Ely admits the charge that judicial review is prima facie incompatible with democracy as it is counter-majoritarian. Yet, he advances a theory stating that judicial review should focus on the political process and ensure equal representation in it. Courts should intervene when the political process fails, either when power-holders obstruct it to preserve the status quo, or when the government denies minorities the same protection it grants to the majority. Through judicial intervention, the court is preventing the tyranny of the majority. Courts are the appropriate institution to carry the counter-majoritarian role, since they are not directly and immediately dependent on approval by or support of the public’s majority for their decisions.20 Such process arguments attempt to outline the types of circumstances in which the political process is likely to be untrustworthy, thus justifying judicial intervention.21
It may similarly be argued that in a democratic society a court has the inherent authority to annul even constitutional amendments when a failure exists in the work of democratic institutions. For such a failure to occur, usually two conditions need to be fulfilled: first, the work of the amendment authority must contradict basic principles of the democratic system; second, the nature of this failure is such that its correction cannot be made through the political institution itself, but rather through an independent agent that is detached from the ordinary representative political system. The usual example of this is a situation in which the parliament, which was elected for a limited time period, amends the constitution according to the amendment procedure in order to prolong its own term. This is not an imaginary hypothesis. Chapter 2 of this book describes the misuse of the amendment power by the Taiwanese Third National Assembly. Likewise, in a parliamentary session in June 2006 that was closed to the public, the National Assembly of Benin amended Art. 80 of the Constitution through Constitutional Law No. 2006–13, which extended the duration of the parliamentary term, retrospectively to the existing legislature, from four to five years. A month later, the Beninese Constitutional Court declared the amendment to be unconstitutional, holding that due to the importance of the principle of ‘national consensus’—which is a principe à valeur constitutionnelle, or ‘constitutional principle’—constitutional amendments should follow a public and open process.22 In such scenarios, it is clear that the elected institution is not expected to correct this failure, as it is itself its very source. A court’s authority to review such a case and decide its merits cannot depend solely on the explicit wording of the constitution, but one can certainly claim that the court absorbs its authority to review such conflicts from the basic principles of the constitutional order itself.
One of the dangers embodied in acts of delegation, in this case from the primary constituent power to the secondary, is that those to whom power is delegated will abuse it. As noted in Chapter 5, the misuse of power is not only to be feared from the legislative branch, but also should be feared from the amendment authority. David Landau demonstrates how amendment procedures are increasingly being abused in order to erode democratic orders.23 Indeed, the argument that judicial review is necessary in order to protect minorities from the majority’s abuse of power, as ‘the people’s’ institutionalized self-control,24 applies to constitutional amendments to the same extent, or even more so. As ordinary legislation, constitutional amendments raise the ‘majoritarian’ problem. However, when enacting ordinary legislation, the government is explicitly limited from violating protected constitutional rights, for instance through the use of limitation clauses. This protection, though, limits only the ‘ordinary legislative’, not the constitutional legislative. In other words, while limitation clauses set the parameters that deem rights violations constitutional, this is a sub-constitutional activity, as the parameters do not apply when the constitution itself limits rights. Hence, if a constitutional norm infringes a constitutional right, the former would not be void merely due to the constitutional protection granted to the right, since this infringement takes place at a similar normative level, namely the constitution. Limitation clauses do not generally establish the criteria for a constitutional violation by constitution provisions.25 Thus, as Denis Baranger correctly claims, when courts refuse to review constitutional amendments, ‘human rights are worse off than they were initially. The normativist legal culture is such that they are not understood as of being exempt from abrogation, while the court acknowledges that a constitutional amendment can curtail or suppress them … the constitution is shown as being unable to protect liberties.’26 Judicial review of amendments is a useful mechanism not only for preventing human rights abuses but also for protecting democracy.27
In fact, as was suggested by Klein, judicial review of amendments was developed precisely because of the fear of misuse of the amendment power and the recognition that ordinary judicial review was insufficient:
What if the ‘amending power’ would try to bypass the constitution by amending it in order to allow the adoption of problematic laws, such as those that had already been declared unconstitutional? There thus appeared to be a need for ‘super-protection’ or ‘super-entrenchment.’28
In particular, the governmental nature of amendment powers and the dangers of coupling governmental interest with fundamental constitutional decisions justify judicial intervention when the amendment authority misuses its power.29 Particularly in weak democracies, judicial review of amendments may seem valuable for protecting democracies from collapsing into autocratic power.30
Responding to the Critics
The effectiveness of unamendability is related to its judicial enforcement. The claim that amendment powers are limited and the claim that such limitations are enforced in courts are not identical. One can certainly make the claim that even if the amendment power is limited, it is not the role of courts to enforce these limitations.31 As is elaborated on in Chapter 8, in some jurisdictions, the existence of unamendable provisions does not necessarily lead to judicial oversight over unamendability. Arguably, unamendability is then declarative and non-justiciable and it constitutes a rule without a legal sanction to prevent the amendment authority from exceeding its limits, although there is the possibility of political or social sanctions. This raises questions regarding the effectiveness of unamendability in these States. Unamendability is most effective when it is enforced by courts, and therefore it is clear that the heavy criticism against unamendability is applicable when it is deemed legally enforceable.32
The subordination enigma
When unamendability is enforced by courts, this creates at least one theoretical challenge. Constitutions create courts and grant them authority. All powers possessed by constituted organs, including courts, derive explicitly or implicitly from the constitution. This raises the logical difficulty of subordination: how can courts, as organs created by the constitution and subordinated to its provisions, rule upon the constitution’s validity? As Joseph Ingham mused,
if the Supreme Court, created by, and owing its authority and existence to the Constitution, should assume the power to consider the validity or invalidity of a constitutional amendment … it would be assuming the power to nullify and destroy itself, of its own force, a power which no artificial creation can conceivably possess.33
Yet, the subordination difficulty rests on a fallacy. It only arises if one conceives amendment powers as equivalent to primary constituent powers. Indeed, if courts review a provision of an original constitution, this might involve the subordination difficulty. For example, in two cases before the Constitutional Court of Bosnia and Herzegovina, certain constitutional provisions that granted privileges for Bosnians, Serbs, and Croats were challenged before the Constitutional Court for conflicting with the principle of equality. The majority of the Constitutional Court’s judges held that the Court lacked the competence to decide upon the constitutionality of the Constitution. Otherwise, if it decided that part of the Constitution was ‘unconstitutional’, it would fail its duty under Art VI(3)(a) of the Constitution to ‘uphold this Constitution’.34
This differs from the example of South Africa, in which the Constitutional Court declared the Constitution of 1996 to be unconstitutional (see Chapter 2).35 In that case, the Interim Constitution of 1993 entrusted the constitutional assembly to work within a framework of thirty-four agreed-upon principles, and empowered the Constitutional Court to review the compliance of the draft Constitution with those principles. Therefore, the Court was exercising an explicit delegated authority, within its competence, in observing the constitution-making process. Another interesting case arrives from Bangladesh. In response to the recent case in the High Court which declared the Sixteenth Amendment unconstitutional (see Chapter 2), Attorney General Mahbubey Alam claimed that since the Sixteenth Amendment restored the original Constitution, the Court was wrong in its decision, given that ‘no court can declare the original constitution illegal’ and courts can only make judgments on amendments to the constitution.36 However, global constitutionalism reveals that even that is no longer accurate. In a unanimous judgment of 22 April 2015, the Constitutional Chamber of the Honduran Supreme Court declared that the original constitutional provisions that prohibited presidential re-election and the unamendability that prohibited any attempt to alter the no-re-election rule were unconstitutional.37
It is noteworthy that since primary constituent powers and amendment powers are dissimilar, the challenge imposed by the subordination enigma does not rise. An analogy illustrating the distinction between constituent power and legislative power may elucidate this: in the ordinary exercise of judicial review, the acts of the ordinary lawmaker operating under the constitution are reviewed against the background provided by the constitution-maker. Similarly, a constitutional amendment adopted by the secondary constituent power may be reviewed against the background provided by the primary constituent power. In acknowledging the distinction between the primary and secondary constituent powers, it is possible to grasp that by exercise of the judicial review of constitutional amendments, the judiciary does not act in contradiction of the constitution, but as its preserver.38
The ‘dead hand’ of the past
Constitutional entrenchment raises the well-known difficulty by which present and future generations are ruled by the ‘dead hand’ of their ancestors.39 Constitutional amendment formulas are Janus-faced due to their contrasting aspects. They simultaneously create the ‘dead hand’ difficulty by requiring an often formidable procedure for amending the constitution and manage to relax it by allowing future generations to change the constitution.40 By preventing current and future generations from amending certain parts of the constitution, unamendability exacerbates the ‘dead hand’ difficulty and obstructs what might be viewed as healthy social development. When the constitution cannot be changed with the changing values of society, then it does not protect the values that society believes in, and instead simply binds the current generation to the values of past ones. One can only recall Article 28 of the French Declaration of Rights and Men and Citizens of 24 July 1793, which states that ‘A people have always the right of revising, amending and changing their Constitution. One generation cannot subject to its laws future generations.’ Thomas Paine and Thomas Jefferson pronounced similar ideas.41 Therefore, the notion that a generation can perpetually tie the hands of another is contentious. Elisha Mulford gave an acute expression of this idea, describing an unamendable constitution as:
The worst tyranny of time, or rather the very tyranny of time. It makes an earthly providence of a convention which has adjourned without day. It places the sceptre over a free people in the hands of dead men, and the only office left to the people is to build thrones out of the stones of their sepulchres.42
This can be described as ‘necrocracy’ rather than democracy. In light of this challenge, critics have argued that unamendability should be repealed or ignored at will and, all the more so, should not be judicially enforceable.43
The ‘dead hand’ argument is founded on a fallacy. First, as demonstrated earlier—although I object to this—even unamendable provisions can be revised in a double-amendment process, as the majority of them are not self-entrenched (see Chapter 5). Second, and more importantly, unamendability does not entirely restrict future generations, who may exercise their primary constituent power and even alter provisions of unamendability, whether self- or non-self-entrenched. Unamendability does not block all the democratic paths for constitutional change, but simply announces that one such path, namely the amendment process, is unapproachable for amending certain constitutional subjects. In order to legitimately achieve the sought constitutional change, another process, that being an appeal to the primary constituent power, ought to be used (see Chapter 4). The purpose of unamendability is to maintain and reform the fundamental principles and institutions in a self-conscious manner.44 Since unamendability limits only the secondary constituent power, it is entirely consistent with ‘the people’s’ sovereignty, as manifested by the primary constituent power through which they can constitute a new constitutional order.45 Surely, overcoming unamendability by initiating a completely new constitution-making process is problematic in itself, as it opens the entire constitution for re-negotiation, thereby increasing costs and facilitating strategic bargaining.46 Yet, at least from a theoretical point of view, the important point is that unamendability is not only consistent with ‘the people’s’ sovereignty, as it allows them to reform the constitution by exercising their primary constituent power, but is also a sovereignty-reinforcement mechanism that creates a space of decision-making that is reserved for ‘the people’. Unamendability therefore does not aim to empower past generations; on the contrary, it empowers current and future generations.
The main objection to judicial enforcement of unamendability is that it is deemed undemocratic. Since a self-governing people ought to be able to challenge or revise its basic commitments, the ability to amend the constitution seems an essential element of any democratic society. Enforceable unamendability positions certain rules or values not only above ordinary politics, but also above constitutional politics and the popular will. Critics, therefore, argue that by not allowing majorities, even super-majorities, to modify these rules or values and by neglecting the importance of the present political process to provide basic protection for the exercise of democratic self-government, unamendability is in clear tension with the basic premise of democratic constitutionalism.47 Arguably, it should be ‘the people’ who decide, either directly or through their representatives, whether a certain constitutional element is essential to the constitutional order or not, and this decision should not be subject to judicial review.48
The question of whether unamendability is ‘undemocratic’ involves four separate aspects, as follows: is the unamendability itself of any subject, regardless of its content, undemocratic? Is the content of the unamendable subject undemocratic? What is the scope of the unamendability? Is it judicially enforceable? Any answer to these questions depends on what one considers ‘democracy’. If one considers democracy as purely formal and a system of self-government, in which citizens have the ability to make majority collective decisions, then unamendability is ‘undemocratic’, as it limits that ability to some extent. If one conceives democracy to include protection of certain rights and principles, this adds a substantive pre-condition for democracy.49 In that respect, the argument that any form of unamendability presents a challenge to democracy relies on a narrow view of formal or majoritarian democracy. The unamendable protection of certain principles that characterize modern democracy in the substantive sense is not per se undemocratic. Unamendability may accord with a broad substantive theory of democracy.50
Undoubtedly, unamendability exacerbates the counter-majoritarian difficulty;51 yet, it is precisely an institution that aims to neutralize the dangers of majoritarianism. Unamendability could, thus, be viewed not as undemocratic, but rather as a tool forestalling the possibility of abuse of power and democracy’s self-destruction.52 Moreover, if one recognizes constitutionalism as a system of ‘higher law’ in which democratic majoritarianism must give way to certain commitments to principles or as indispensable legal limits to governmental power,53 unamendability simply takes this idea to its extreme. The recognition that the amendment power is limited, as in the case of any other power within the constitutional scheme, is an indispensable consequence of the organization of powers within a limited government.54
With regard to the content of the unamendable subject, there is no categorical answer and every case must be judged on its own merits. Clearly, unamendability can protect issues that would reasonably be considered ‘desirable’ democratic values, such as human dignity, the democratic process, or the rule of law. Other unamendable provisions, even if ‘desirable’ from a democratic perspective, can hardly be considered a pre-condition for democracy—for example, the unamendability of ‘the rights of … trade unions’ in the Portuguese Constitution of 1976 (Art. 288(e)). Unamendability can also protect ‘undesirable’ principles or practices from a democratic perspective, if it protects autocratic values or oppresses minorities. For example, the proposed Corwin unamendable amendment, which was aimed at protecting slavery (see Chapter 5), would be both formally and substantively undemocratic.
With regard to the scope of unamendability, prima facie, the wider the scope of the unamendability—or, in other words, the larger the number of principles, institutions, or rules beyond the reach of any majority—the greater its tension with democracy.55 Unamendability risks impoverishing democratic debates, because when citizens are unable to change society’s values, civil motivation deteriorates, as does participation in any decision-making process, and the public debate is then replaced with apathy. Nonetheless, the mere act of unamendability of certain values might actually place them at the centre of public debate when, otherwise, such values might not have even been open for dispute. Moreover, unamendability creates a ‘chilling effect’ leading to hesitation before repealing an unamendable constitutional subject, thereby allowing time for political and public deliberations regarding the protected constitutional subject and placing them at the centre of the public agenda.
As for judicial enforcement of unamendability, endowing the court with the authority to invalidate constitutional amendments for violating unamendable provisions surely enhances the counter-majoritarian difficulty embodied in the situation of unelected and unaccountable judges who override the decisions of ‘the people’s’ representatives.56 Yet, how can a small, often divided, set of judges replace the democratic judgement of ‘the people’ and their representatives?
Judicial review is based upon a distinction between ‘the people’s’ will as constituent power and the majoritarian representatives’ will. When the courts review legislation, they guarantee ‘the people’s’ sovereign will, as expressed in the constitution against the will of the political majority. Judicial review reminds ‘the people’ that they, and not their representatives, are the true holders of the sovereign power.57 However, if the courts were allowed to review constitutional amendments, would this not turn ‘the people’s guardian of the constitution against politicians’ into ‘a guardian of the constitution against all comers’?58
The distinction between primary and secondary constituent powers provides an answer. Arguably, when the courts review amendments vis-à-vis the constitution’s unamendable principles, they are not acting in a completely counter-majoritarian manner, for they have the support of the high authority of the primary constituent power. Judicial review, therefore, expresses the democratic base of the constitution, in that it gives expression to the will of ‘the people’ as a superior legal norm that conflicts with the present will of the political majority as expressed by the amendment power. Thus, when judges enforce unamendability, they are vindicating, not defeating, the will of ‘the people’.59
According to this view, judicial review of amendments articulates a different, deeper, or more basic will than the current political majority. The conflict that the court decides is between the supra-temporal will of ‘the people’, as expressed in the basic principles of the constitution, and the temporary will of ‘the people’, as expressed in a constitutional amendment. Consequently, judicial enforcement of unamendability may be regarded as democratic or even majoritarian in a way, since it represents past, present, and future super-majorities. Even if one rejects the said supra-temporal concept of primary constituent power, unamendability does not necessarily prevent ‘the people’ from engaging in the political process via the emergence of the primary constituent power, through which even the most basic principles of society can be reformed (see Chapter 4). This makes ‘the people’, in their primary constituent power capacity—not the courts—the final arbiters of society’s basic values.
Enhancing the judiciary’s power
From an institutional perspective, judicial enforcement of unamendability shifts the locus of constitutional change from those authorities entrusted with the amendment power towards the courts, allegedly granting them the last word on constitutional issues.60 The courts can use unamendability as a strategic trump card, by applying it selectively and generally elevating their powers vis-à-vis other branches.61 This problem is accentuated in the case of implicit unamendability, where, in contrast to situations in which the textual standard provides guidance and constraints, the judiciary has sweeping power to determine the ‘spirit’, ‘basic structure’, or ‘basic principles’ of the constitution. For example, in Nepal, before the Constitution of 1990 was drafted, debate focused on the idea of creating a list of basic constitutional features that would be accorded special protection. This idea was eventually rejected in favour of a general unamendability formula that prohibited amendments from ‘contravening the spirit of the Preamble of this Constitution’ (Art. 116(1)). This compromise exacerbated the debate as to what exactly was the ‘spirit of the Preamble’.62 This prohibition was removed from the interim Constitution of 2007 and the 2015 Constitution, which now explicitly protects the following principles from amendment: national sovereignty, territorial integrity and independence, and ‘the people’s’ sovereignty (Art. 274). Likewise, the Indian ‘Basic Structure Doctrine’ has been heavily criticized for its open-ended nature and the wide discretion that it grants judges.63
Judicial enforcement of unamendability may not only lead to a power imbalance by elevating the judiciary’s power vis-à-vis the executive and legislature branches but might also fracture the fragile balance of judicial review. One of the arguments justifying the judicial review of ordinary legislation is that since judicial decisions may be overturned by constitutional amendments, the courts do not necessarily possess the last word.64 In the French constitutional debate, Georges Vedel famously compared constitutional amendments to the ancient institution of ‘lit de justice’, by which the sovereign king could appear before the court and overturn a judicial decision.65 In the same way, ‘the people’ can overturn a court’s ruling through constitutional amendments.66 This democratic check would arguably disappear if the courts could review constitutional amendments.67
Judicial enforcement of unamendability undeniably enhances the judiciary’s power; yet, the theory behind unamendability manages to moderate this concern. Again, even if courts have the power to review constitutional amendments, they do not possess final decision-making power. Recall, decisions by the primary constituent power are not submitted to judicial review, as is the case with those decisions adopted by the limited secondary constituent power.68 Hence, the judicial branch is not sovereign and can still be overridden by an exercise of the superior primary constituent power.
Additionally, the courts can commonly interpret constitutional provisions, including amendments that have become part of the constitution. If the courts have the authority to interpret the constitution, and in doing so grant to a constitutional provision either a very narrow or broad interpretation, then allowing them to invalidate an amendment is not such a radical step.69 True, in the case of interpretation, it would be open to another court to choose a different interpretation in the future. Nevertheless, the results of an interpretation that significantly differs from the legislative intent, or is detached from the provision’s wording, could be more severe than the act of annulment, as it conflicts with legal certainty and separation of powers.70 As Christine Landfried remarks:
A clear-cut invalidation of a law can give the legislature more room for political manoeuvring, in that a new law can be enacted. However, the declaration that only one particular interpretation of a law is constitutional often entails precise prescriptions and can quite easily result in lawmaking by the Constitutional Court.71
In the case of annulment, the ‘ball returns to the hands’ of the amending authority, which can re-constitute the amendment according to the court’s decision or otherwise. In the case of interpretation, if the amending authority is not satisfied with the new meaning of the amendment it would have to annul the amendment through the amendment process, which would be ‘a reversal of political sentiment of enormous magnitude’;72 however, this time the ‘ball has left the hands’ of the amending authority and, until its replacement, it is now in the public sphere, shaped by the hands of the judiciary.
Finally, the theory of unamendability calls for judicial restraint, and the judicial enforcement of unamendability should be carried out according to clear guidelines. Chapter 8 suggests the way in which judicial review of amendments should be exercised, and proposes a standard of review which ensures that the exercise of this extreme power would only be undertaken in aggravated cases and exceptional circumstances.
Noah Webster, writing a series of articles in the American Magazine in 1787–8 as ‘Giles Hickory’, criticized any attempt to create an unamendable constitution. This attempt is not only ‘arrogant and impudent’, since it means to ‘legislate for those over whom we have as little authority as we have over a nation in Asia’, but would also be useless, since ‘a paper declaration is a very feeble barrier against the force of national habits, and inclinations’.73 Indeed, unamendability is a complex and controversial mechanism, which must be applied with great care. Especially when unamendability is enforced in courts, the judiciary can be turned into the ‘strongest wing of the state’.74
Nevertheless, once the theory of unamendability is correctly construed in light of the delegated nature of the amendment power, many of the objections to unamendability and its judicial enforcement are relaxed. Understanding the three tracks of democracy (see Chapter 4) leads to the conclusion that by reviewing constitutional amendments, courts protect the vertical separation of powers between the primary and secondary constituent powers, and this ensures that the amendment authority does not exceed its limits and does not act ultra vires. This exercise almost resembles a procedural review whereby one can observe whether the correct process is undertaken for the replacement of the constitution or the modification of its core identity, and can verify that the amendment authority does not abuse its limited powers (see Chapter 5). Unamendability and its judicial enforcement should, therefore, not be regarded as preventing democratic deliberation on a given ‘unamendable’ matter, but rather should make sure that certain changes take place via the proper participatory channel of higher-level democratic deliberations. Understood in this way, the doctrine of constitutional unamendability can be seen as a safeguard of ‘the people’s’ primary constituent power. Unamendability is, therefore, not an expression of necrocracy, meaning a government whereby ‘the people’ are governed by the dead, but rather is the ultimate expression of democracy.
4 My paradigmatic jurisdiction is one in which the practice of judicial review is recognized; although analytically, at least, judicial review of amendments can be exercised even where judicial review of ordinary legislation is not recognized. See Aharon Barak, ‘Unconstitutional Constitutional Amendments’ (2011) 44(3) Isr. L. Rev. 321, at fn. 4. In fact, Gabriel Franco Fernández, Theoretical and Practical Problems of Metaconstitutional Review (LLM Thesis, University of Toronto 2009), suggested that judicial review of constitutional norms, termed ‘metaconstitutional review’, should be studied as a distinct legal phenomenon, different from ordinary judicial review. See also Joel I. Colón-Ríos, ‘A New Typology of Judicial Review of Legislation’ (2014) 3(2) Glob. Cons. 143 (proposing a new typology of judicial review that includes ‘strong basic structure review’, where courts can strike down constitutional amendments incompatible with the principles on which the constitution rests, and ‘weak basic structure review’, where courts can strike down constitutional legislation but in the end ‘the people’, acting through a Constituent Assembly, have the final word on the validity of positive law). According to the theory presented in this book of unamendability in both weak and strong forms of ‘basic structure review’, ‘the people’, as holders of primary constituent power, have the final say.
7 Sharon Weintal, ‘The Inherent Authority of Judges in a Three-track Democracy to Recognise Unenumerated Constitutional Rights: The Israeli Story of a Judicial Mission with No Ammunition’ in Gideon Sapir, Daphne Barak-Erez, and Aharon Barak (eds), Israeli Constitutional Law in the Making (Hart Publishing 2013) 285, 289; 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, 474.
8 Raymond Carré de Malberg, Expression de la volonté générale (Economica 1984)  126, cited in Michel Troper, ‘The Logic of Justification of Judicial Review’ (2003) 1(1) Int’l J. Const. L. 99, 103.
9 Paulo Ferreira da Cunha, ‘Les limites du pouvoir de révision constitutionnelle entre le pouvoir constituant et la constitution matérielle. Une illustration dans le contexte lusophone’, VIIth Constitutional Law World Congress—Athens (2007) 11, <http://works.bepress.com/pfc/6>
10 Marbury v. Madison, 5 U.S. (1 Cranch) 137, 178 (1803). See Michel Troper, ‘Marshall, Kelsen, Barak and the Constitutionalist Fallacy’ (2005) 3 Int’l J. Const. L. 24, 37–8 (claiming that Marbury contains almost all the arguments that historically could be and have been raised in favour of judicial review).
12 Claude Klein, ‘Le controle des lois constitutionnelles—Introduction a une problematique modern’ (janvier 2010) 27 Cahiers du conseil constitutionnel, <http://www.conseil-constitutionnel.fr/conseil-constitutionnel/francais/cahiers-du-conseil/cahier-n-27/le-controle-des-lois-constitutionnelles-introduction-a-une-problematique-moderne.51382.html>
15 Cited in W. F. Dodd, ‘Amending the Federal Constitution’ (1921) 30(4) Yale L. J. 321, 323. Compare with the Judgment by the Constitutional Court of the Republic of Moldova, Constitutional Review on Modality of Electing the President, Complaint No. 48b/2015 (4 March 2016), para. 89: ‘The rationale of involving constitutional review by an authority that is independent from the Parliament stems in the perception that if the Parliament itself is the judge of its own legislations, it may be easily tempted to resolve any doubt in its favour.’
20 John Hart Ely, Democracy and Distrust: A Theory of Judicial Review (Harvard University Press 1980) 4–12, 73–104; John Hart Ely, ‘Toward a Representation-reinforcing Mode of Judicial Review’ (1977–8) 37 Md. L. Rev. 451. See Paul N. Cox, ‘John Hart Ely, Democracy and Distrust: A Theory of Judicial Review’ (1981) 15 Val. U. L. Rev. 637, 640.
21 Michael C. Dorf, ‘Legal Indeterminacy and Institutional Design’ (2003) 78 NYU L. Rev. 875, 895–7. On the counter-majoritarian role of courts regarding constitutional amendments, see Nicholas W. Erickson, ‘Break on Through: The Other Side of Varnum and the Constitutionality of Constitutional Amendments’ (2011) 59 Drake L. Rev. 1225, 1242–4.
22 See Decision DCC 06-074 of the Beninese Constitutional Court of 08 July 2006; Horace Sègnonna Adjolohoun, ‘Between Presidentialism and a Human Rights Approach to Constitutionalism: Twenty Years of Practice and The Dilemma of Revising the 1990 Constitution of Benin’ in Morris Kiwinda Mbondenyi and Tom Ojienda (eds), Constitutionalism and Democratic Governance in Africa: Contemporary Perspectives from Sub-Saharan Africa (Pulp 2013) 245, 250–1, 273–4; Babacar Kante, ‘Models of Constitutional Jurisdiction in Francophone West Africa’ (2008) 3 J. Comp. L. 158, 167.
23 David Landau, ‘Abusive Constitutionalism’ (2013) 47(1) UC Davis L. Rev. 189. See also Marie-Claire Ponthoreau and Jacques Ziller, ‘The Experience of the French Conseil Constitutionnel: Political and Social Context and Current Legal-theoretical Debates’ in Sadurski Wojciech (ed.), Constitutional Justice, East and West: Democratic Legitimacy and Constitutional Courts in Post-Communist Europe in a Comparative Perspective (Springer 2002) 119, 139.
25 See, for example, Aharon Barak, Proportionality in Law—The Infringement of the Constitutional Right and Its Limits (Nevo 2010) 111, 128–30 [Heb.]; HCJ 1368/94 Porat v. The State of Israel, 57 (5) PD 913 (Isr.). See, however, the recent judgment by the Supreme Court of Papua New Guinea in Namah v. Pato  PGSC 13; SC1497, <http://www.paclii.org/pg/cases/PGSC/2016/13.html>. In this judgment, it was held that Section 38(1) of the Constitution, which limits the Parliament’s power to make laws regulating or restricting fundamental rights, extends also to constitutional amendments. In that case, the Supreme Court invalidated the Constitution Amendment (No. 37) (Citizenship) Law, which authorized the denial of personal liberty of asylum-seekers transferred from Australia to Papua New Guinea. According to the Supreme Court, by not explaining ‘the purpose of the amendment or the right or rights which it purports to restrict’ and by not justifying why the regulation or restriction is ‘reasonably justifiable in a democratic society having a proper respect for the rights and dignity of mankind’, the amendment fails to justify the requirements of the Section 38 limitation clause. See Douglas McDonald, ‘Restrictions on Constitutional Amendments in Papua New Guinea and India’, Law and Other Things (18 May 2016), <https://lawandotherthings.blogspot.co.il/2016/05/restrictions-on-constitutional.html?m=1>. This application of a limitation clause to constitutional amendments resembles the earlier Indian case of Golaknath v. State of Punjab, AIR 1967 SC 1643, discussed in Chapter 2.
27 Pratap Bhanu Mehta, ‘The Inner Conflict of Constitutionalism: Judicial Review and the Basic Structure’ in Zoya Hasan, Eswaran Sridharan, and Ratna Sudarshan (eds), India’s Living Constitution: Ideas, Practices, Controversies (Anthem Press 2002) 179, 193–5.
29 Landau (n. 23) 231–9.
31 See, for example, Laurence H. Tribe, ‘A Constitution We Are Amending: In Defense of a Restrained Judicial Role’ (1983) 97 Harv. L. Rev. 440–3. For Schmitt, for example, the ‘guardian of the constitution’ would not be a constitutional court, but rather the president. See Lars Vinx, The Guardian of the Constitution—Hans Kelsen and Carl Schmitt on the Limits of Constitutional Law (Cambridge University Press 2015) 125–73. Of course, with the limited judicial review of ordinary legislation during the Weimar period, judicial review over constitutional amendments was naturally not recognized. See Andrew Arato, ‘Multi-track Constitutionalism beyond Carl Schmitt’ (2011) 18(3) Constellations 324, 335–6 (noting that the ‘striking thing about Schmitt’s analysis of the limits to the amending power is that he never discusses how these limits are to be enforced’).
32 John R. Vile, ‘The Case against Implicit Limits on the Constitutional Amending Process’ in Sanford Levinson (ed.), Responding to Imperfection: The Theory and Practice of Constitutional Amendment (Princeton University Press 1995) 191, 198–9. For more on such critics, see Yaniv Roznai, ‘Necrocracy or Democracy? Assessing Objections to Constitutional Unamendability’ in Richard Albert and Bertil Emrah Oder (eds), An Unconstitutional Constitution? Unamendability in Constitutional Democracies (Springer, forthcoming 2017).
34 Case No. U-5/04 Request of Mr. Sulejman Tihić, Decision of 31 March 2006, <http://www.codices.coe.int/NXT/gateway.dll/CODICES/full/eur/bih/eng/bih-2006-1-003>; Case No. U-13/05, Request of Mr Sulejman Tihić, Decision of 26 May 2006, <http://www.codices.coe.int/NXT/gateway.dll/CODICES/full/eur/bih/eng/bih-2006-2-005>. See David Feldman, ‘“Which in Your Case You Have Not Got”: Constitutionalism at Home and Abroad’ (2011) 64(1) Current Legal Problems 117, 142–4; David Feldman, ‘The Nature and Effect of Constitutional Rights in Post-conflict Bosnia and Herzegovina’ in Harvey and Schwartz (n. 30) 151, 164. Contrary to the Constitutional Court, in Sejdić and Finci v. Bosnia and Herzegovina, the European Court of Human Rights held that it has the jurisdiction to decide upon the issue and that the abovementioned constitutional provision constitutes a breach of the European Convention of Human Rights (see Chapter 3).
36 Ashif Islam Shaon, ‘HC Rules 16th Amendment Illegal’ Dhaka Tribune (Bangladesh, 6 May 2016), <http://www.dhakatribune.com/bangladesh/2016/may/06/hc-rules-16th-amendment-illegal>
37 See Corte Suprema de Justicia, F-165, <http://www.poderjudicial.gob.hn/Documents/FalloSCONS23042015.pdf>. For a review and critique see David Landau, Yaniv Roznai, and Rosalind Dixon, ‘Doctrinal Capture and Constitutional Change’ (unpublished paper, 2016).
39 See, for example, Michael J. Klarman, ‘Antifidelity’ (1997) 70 S. Cal. L. Rev. 381, 382; Michael W. McConnell, ‘Textualism and the Dead Hand of the Past’ (1998) 60 Geo. Wash. L. Rev. 1127–8; Adam M. Samaha, ‘Dead Hand Arguments and Constitutional Interpretation’ (2008) 108 Colum. L. Rev. 606.
41 Thomas Paine, Rights of Man, Common Sense, and Other Political Writings (M. Philip ed., Oxford University Press 1998) 91–2 (‘every age and generation must be as free to act for itself … [I]t is the living, and not the dead, that are to be accommodated’). In a famous correspondence between James Madison and Thomas Jefferson from 6 September 1789, Jefferson argued that constitutions should be rewritten every generation, declaring that the dead should not govern the living since ‘the earth belongs always to the living generation’. See Lance Banning, Jefferson and Madison: Three Conversations from the Founding (Rowman & Littlefield 1995) 29.
45 When considering the fact that a national constitution’s median lifespan is a mere nineteen years, any arguments regarding unamendability as binding future generations to the ‘dead hand of the past’ are relaxed. On the lifespan of constitutions, see Zachary Elkins, Tom Ginsburg, and James Melton, The Endurance of National Constitutions (Cambridge University Press 2009) 129.
46 Stephen Michel and Ignacio N. Cofone, ‘Credible Commitment or Paternalism? The Case of Unamendability’ in Albert and Oder (n. 32).
47 Richard Albert, ‘Counterconstitutionalism’ (2008) 31 Dalhousie L. J. 1, 47–8; Richard Albert, ‘Constitutional Handcuffs’ (2010) 42 Ariz. St. L. Rev. 663, 667, 698; Melissa Schwartzberg, Democracy and Legal Change (Cambridge University Press 2009) 2; Cláudia de Góes Nogueira, ‘A Impossibilidade de as cláusulas pétreas vincularem as gerações futuras’ (2005) 42(166) Revista de informação legislativa 79, 84.
48 Carlos Bernal, ‘Unconstitutional Constitutional Amendments in the Case Study of Colombia: An Analysis of the Justification and Meaning of the Constitutional Replacement Doctrine’ (2013) 11 Int’l J. Const. L. 339, 349.
49 See, for example, Ronald Dworkin, ‘Constitutionalism and Democracy’ (1995) 3(1) Eur. J. Phil. 2; Aharon Barak, The Judge in a Democracy (Princeton University Press 2009) 23–6; Rostow (n. 5) 195; William R. Bishin, ‘Judicial Review in Democratic Theory’ (1977–8) 50 S. Cal. L. Rev. 1099.
50 Dominique Rousseau, ‘The Constitutional Judge: Master or Slave of the Constitution?’ in Michel Rosenfeld (ed.), Constitutionalism, Identity, Difference, and Legitimacy: Theoretical Perspectives (Duke University Press 1994) 261, 273–82.
51 Oran Doyle, ‘Constraints on Constitutional Amendment Powers’ in Richard Albert, Xenophon Contiades, and Alkmene Fotiadou (eds), The Foundations and Traditions of Constitutional Amendment (Hart Publishing, forthcoming 2017).
55 For example, the unamendable provision which was inserted in the Constitution of Bangladesh is extremely broad, as it protects nearly one-third of the Constitution, including the preamble, all the fundamental rights provisions, and ‘the provisions of articles relating to the basic structure’, from any amendment. See Ridqanul Hoque, ‘Eternal Provisions in the Constitution of Bangladesh: A Constitution Once and for All?’ in Albert and Oder (n. 32).
56 Of course, at least with regard to explicit unamendable provisions, Michel Rosenfeld was right to state that ‘any countermajoritarian difficulty would have to be ascribed to the constitution itself rather to judicial interpretation’. See Michel Rosenfeld, ‘Constitutional Adjudication in Europe and the United States: Paradoxes and Contrasts’ in European and US Constitutionalism (Council of Europe 2005) 165, 186 fn. 80.
57 Dominique Rousseau, ‘La jurisprudence constitutionnelle: quelle “nécessité démocratique”?’ in G. Drago, N. Nolfessis, and B. François (eds), La légitimité de la jurisprudence du Conseil constitutionnel (Economica 1999) 363, 367–74; Dominique Rousseau, ‘The Conseil Constitutionnel Confronted with Comparative Law and the Theory of Constitutional Justice (or Louis Favoreu’s Untenable Paradoxes)’ (2007) 5 Int’l J. Const. L. 28, 43.
60 Schwartzberg (n. 47) 3, 22, 184–9; Richard Albert, ‘Amending Constitutional Amendment Rules’ (2015) 13(3) Int’l J. Const. L. 655.
63 See, for example, N. R. Madhava Menon, ‘Basic Structure: After 30 Years’ and R. K. P. Shankardass, ‘Anomalies of the “Doctrine”’, both in Pran Chopra (ed.), The Supreme Court versus the Constitution: A Challenge to Federalism (Sage 2006) 59, 137.
64 See, for example, Rosalind Dixon and Adrienne Stone, ‘Constitutional Amendment and Political Constitutionalism: A Philosophical and Comparative Reflection’ in David Dyzenhous and Malcolm Thorburn (eds), Philosophical Foundations of Constitutional Law (Oxford University Press 2016) 95; Rosalind Dixon, ‘Constitutional Amendment Rules: A Comparative Perspective’ in Tom Ginsburg and Rosalind Dixon (eds), Comparative Constitutional Law (Edward Elgar Publishing 2011) 96, 98; Alec Stone Sweet, Governing with Judges: Constitutional Politics in Europe (Oxford University Press 2000) 89; David E. Kyvig, ‘Appealing Supreme Court Decisions: Constitutional Amendments as Checks on Judicial Review’ (1996) 21(2) J. Sup. Court. His. 106.
65 Georges Vedel, ‘Schengen et Maastricht (à propos de la décision n°91-294 DC du Conseil constitutionnel du 25 juillet 1991)’ (1992) 8(2) Revue Française de droit administratif 173. On ‘lit de justice’, see Max Radin, ‘The Judicial Review of Statutes in Continental Europe’ (1934–5) 41 W. Va. L. Q. 112, 115.
66 According to Sunstein, when there is a relatively easy ability to overcome judicial decisions through the amendment procedure, the courts would then not worry so much about public backlash: see Cass R. Sunstein, A Constitution of Many Minds (Princeton University Press 2009) 138. Of course, overuse of overruling amendments may harm the role of the courts. See Vicki C. Jackson, ‘The (Myth of Un)Amendability of the US Constitution and the Democratic Component of Constitutionalism’ (2015) 13(3) Int’l J. Const. L. 575, 593.
67 Tribe (n. 31) 442–3.
68 Ponthoreau and Ziller (n. 23) 140.
69 Even in Hungary, where the Constitution explicitly prohibits the Constitutional Court from conducting a substantive judicial review of amendments, the Hungarian Constitutional Court emphasized in Decision 12/2013 that as guardian of the Constitution, it will continue to interpret and apply the Fundamental Law as a ‘coherent system’, which might lead to a ‘de facto substantive review of constitutional amendments’. See Fruzsina Gárdos-Orosz, ‘The Role of Non-Amendable Clauses in Judicial Review of Constitutional Amendments: Theoretical Considerations Inspired by Hungarian Constitutional Court Case Law’ in Albert and Oder (n. 32).
70 Kerstin Tobisch, ‘Public Procurement Law and Effective Legal Protection’ (2011) ICL 424, 427. Pfersmann describes provisions that were given a different meaning from what they actually mean, because otherwise they would be invalidated by the court as ‘norms without texts’. See Otto Pfersmann, ‘Ontological and Epistemological Complexity in Comparative Constitutional Law’ in Antonina Bakardjieva Engelbrekt and Joakim Nergelius (eds), New Directions in Comparative Law (Edward Elgar Publishing 2009) 81, 88.
71 Christine Landfried, ‘Constitutional Review and Legislation in the Federal Republic of Germany’ in Christine Landfried (ed.), Constitutional Review and Legislation: An International Comparison (Nomos 1988) 154.
72 David E. Kyvig, ‘Arranging for Amendment: Unintended Outcome of Constitutional Design’ in David E. Kyvig (ed.), Unintended Consequences of Constitutional Amendment (University of Georgia Press 2000) 9, 10.
74 P. P. Rao, ‘The Constitution, Parliament and the Judiciary’ in Chopra (n. 63) 70, 73.