The Spectrum of Constitutional Amendment Powers
Forthcoming in a peer-review edited collection on ‘Comparative Constitutional Amendments’
29 Pages Posted: 25 Aug 2015
Date Written: August 24, 2015
The theory of unamendability identifies a simple yet fundamental distinction between primary constituent (constitution-making) power and secondary constituent (constitution-amending) power. The latter is limited by unamendability and the former – perceived as the people’s democratic constitution-making power – is unlimited by unamendability. This article develops the distinction by supplementing it with a further one, between various shades of secondary constituent powers along a ‘spectrum’; a theoretical construct that links constitutional amendment procedures and limitations which ought to be imposed upon constitutional amendment powers. According to this spectrum theory, constitutional systems are polymorphic: the more similar the democratic characteristics of the amendment powers are to those of the primary constituent power, the less it should be bound by limitations; and vice versa: the closer it is to a regular legislative power, the more it should be fully bound by limitations. This examination is an important step towards a theory of unamendability.
Keywords: amendment power, constitutional revision, unamendability, constituent power, judicial review of amendments
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