Unconstitutional Constitutional Amendments: Between Contradiction and Necessity

Abstract

The idea of an unconstitutional constitutional amendment is apt to puzzle some constitutionalists. It is thought to involve an inherent paradox or at least to be deeply undemocratic, denying to the people control of their own constitutional future. This idea that, which I will call the ‘contradiction thesis’, is taken to task Unconstitutional Constitutional Amendments. Yaniv Roznai seeks to unscramble these apparent contradictions, to provide a secure theoretical foundation for the idea constitutional unamendability and to resolve its tensions with democracy. This argument is ambitious in its scope and its global comparative reach. Roznai does not limit himself to justifying explicit limitations placed on the power of amendment nor to limitations that go only to process. Rather, Roznai argues that amendment powers are always subject to limitations of substance and procedure and that these limitations may be implicit as well as explicit.

In this short essay argues the Roznai successfully unscrambles the apparent conceptual confusion in the idea of an unconstitutional constitutional amendment. It does not, however, successfully show that the recognition of a doctrine of unamendability, at least in its substantive and implicit forms, is a necessary consequence of constitutionalism. A full justification for a doctrine of unamendability depends, more than Roznai recognises, on the nature of a given constitutional order.

Keywords: constitutional law, comparative constitutional law, constitutional amendment

JEL Classification: K00, K39