Towards a Theory of Unamendability

Abstract

This article stems from a single puzzle: how can constitutional amendments be unconstitutional? Adopting a combination of theoretical and comparative enquiries, this article focuses on the question of substantive limitations on the amendment power, looking at both their prevalence in practice and the conceptual coherence of the very idea of limitations to constitutional amendment powers. The article constructs a general theory of unamendability, which explains the nature and scope of amendment powers. The theory of unamendability identifies and develops a middle ground between constituent power and pure constituted power, a middle ground that is suggested by the French literature on ‘derived constituent power’. Undergirding the discussion, therefore, is a simple yet fundamental distinction between primary constituent (constitution-making) power and secondary constituent (constitution-amending) power. This distinction, understood in terms of an act of delegation of powers, enables the construction of a theory of the limited (explicitly or implicitly) scope of secondary constituent powers. The theory of unamendability aims to clarify the puzzle of unconstitutional constitutional amendments.

Keywords: unamendability, unconstitutional constitutional amendments, entrehnchment, eternity clauses, judicial review of constitutional amendments, amendment power, constituent power