Transnational Constitutionalism and a Limited Doctrine of Unconstitutional Constitutional Amendment
13 (3) International Journal of Constitutional Law __ (2015 Forthcoming)
Posted: 1 Jul 2015
Date Written: 2015
This article, part of the ICON Symposium on The Challenge of Formal Amendment, was presented at the Inaugural Association of American Law Schools (AALS) Academic Symposium on January 5, 2014. A deep tension exists in many parts of the world between commitments to democracy and procedures for constitutional amendment. Amendments are frequently passed that follow formal democratic procedures but are aimed at achieving anti-democratic or “abusive” constitutional aims — i.e. to help powerful presidents extend their term in office, to remove parliamentary or federalism-based checks on executive power, and to narrow or suspend basic human rights protections. Limiting a power of constitutional amendment, therefore, can have clear democratic benefits. One way to do this is via a judicially enforceable doctrine of “unconstitutional constitutional amendment.” While such a doctrine may not be a complete solution to anti-democratic uses of constitutional amendment powers, it can create an additional hurdle to change. But such a doctrine should be approached with caution from a democratic perspective, because it can also create a significant road-block to the legitimate use of amendment procedures as a means of overriding courts decisions deemed unreasonable or unacceptable by a majority of citizens. In order to promote democracy rather than undermine it, any doctrine of unconstitutional constitutional amendment must be limited in scope. This article argues that because threats to a democratic order are so varied, and can be altered or staged by would-be authoritarian actors, limiting the doctrine to a narrow set of institutional provisions or principles defined ex ante is unlikely to be a stable solution. Instead, courts must rely on a broader doctrine that is nonetheless limited to constitutional amendments that clearly pose a substantial threat to core democratic values. This article also argues that an effective way to limit the use of such a doctrine is by tying its use to transnational constitutional norms. Engagement with transnational constitutional law will help to limit both the kinds of principles courts define as fundamental and the sorts of institutional changes that are alleged to pose a substantial threat to those principles. The article shows how engagement with transnational materials can serve as a workable check on a doctrine of unconstitutional constitutional amendment, helping to separate cases where the doctrine must be deployed to defend democracy from cases where its use is unnecessary.
Keywords: constitutional amendment, unconstitutional constitutional amendment, basic structure doctrine, substitution of the constitution, Indian Supreme Court, Colombian Constitutional Court, transnational engagement
JEL Classification: K33, K39
Suggested Citation: Suggested Citation