The Unamendable Core of the United States Constitution
Comparative Perspectives on the Fundamental Freedom of Expression (Andras Koltay ed., 2015, Forthcoming)
36 Pages Posted: 7 May 2015 Last revised: 2 Feb 2016
Date Written: May 2, 2015
Nothing in the United States Constitution is today formally unamendable. Yet it is worth asking whether the Constitution requires some form of implicit unamendability in order to survive according to its own terms. In this paper, I inquire whether anything in the Constitution -- whose constitutional text, history and interpretation are rooted in the concept of popular sovereignty -- should be regarded as informally unamendable. I conclude that, if the Constitution is to remain internally coherent, the informal unamendability of the First Amendment’s democratic rights may be a condition precedent to the Constitution’s promise of robust democracy. I nevertheless express some doubt about how political actors might reliably enforce an informally unamendable First Amendment. I suggest in closing that the optimal function of unamendability in modern constitutionalism is its expressive capacity, specifically that unamendability is more effective as a declaration of importance than as a referent for judicial enforceability.
Keywords: Comparative Constitutional Law, Comparative Constitutional Amendment, Constitutional Change, Informal Amendment, Constitutional Interpretation, Judicial Review, United States Constitution, Indian Constitution, Constitutional Design, Unamendability, First Amendment, Expression, Democracy
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