31 Pages Posted: 29 Oct 2016 Last revised: 6 Oct 2017
Date Written: October 28, 2016
The present fascination with the global phenomenon of an unconstitutional constitutional amendment has left open the question whether a constitution can be unconstitutional. Invalidating a single amendment for violating the architectural core of a constitution is an extraordinary action, but it is occurring with increasing frequency around the world. But to call an entire constitution unconstitutional, however, seems different in both kind and degree. In this Article, I illustrate and evaluate four different conceptions of an unconstitutional constitution. Each conception draws from a different constitution currently in force around the world, specifically the Constitutions of Canada, Mexico, South Africa and the United States. What unites all four conceptions of an unconstitutional constitution is that each instantiation, despite its unconstitutionality in different senses of the concept, nonetheless traces its roots to democratic foundations. The strength of these foundations, however, varies as to each.
Keywords: Constitutional Design, Unconstitutional Constitutional Amendment, Constitution-Making, Constitutional Change, Constitutional Amendment, Canadian Constitution, Mexican Constitution, United States Constitution, South African Constitution, Certification Decision
Suggested Citation: Suggested Citation
Albert, Richard, Four Unconstitutional Constitutions and their Democratic Foundations (October 28, 2016). 50 Cornell International Law Journal 169 (2017); Boston College Law School Legal Studies Research Paper No. 465. Available at SSRN: https://ssrn.com/abstract=2860442