Amendment Power, Constituent Power, and Popular Sovereignty: Linking Unamendability and Amendment Procedures

Abstract

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.