The Value of the Concept of Unconstitutional Constitutions
50 Cornell International Law Journal Online 39 (2017)
8 Pages Posted: 11 Oct 2017 Last revised: 18 Jan 2021
Date Written: October 4, 2017
Abstract
This paper comments Richard Albert's Theory of Unconstitutional Constitutions and argues that, under Albert's theory, the ideas of democratic legitimacy and constitutionality are codependent. Then, this article claims that the difference between the unconstitutional amendment and the unconstitutional constitution is one of a kind (and not one of degree), and explores the nature of the "whom question": who can declare that a constitution is unconstitutional?
Keywords: Constituent Power, Constitutional Theory, Unconstitutional Constitution, Unconstitutional Constitutional Amendment
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