Religion, Secularism and Limitations on Constitutional Amendment

Abstract

Constitutional designers often entrench religion and secularism against amendment. In this Chapter prepared for the Edward Elgar Research Handbook on Law and Religion, we explore the unamendability of religion and secularism in constitutions around the world. We begin, in Part I, with an overview of the formal unamendability of religion and secularism in codified constitutions. In Part II, we explore how religion and secularism in their unamendable forms have been interpreted; here we distinguish between formal unamendability entrenched in a codified constitution and informal unamendability that arises from judicial interpretation or political practice. We focus on the Constitutions of Canada, India, Iran and Turkey. Part III moves from the descriptive to the normative: we state the democratic objection to unamendability as well as the democratic defense of unamendability. We conclude with thoughts on the uses and misuses of unamendability, and its effectiveness in constraining political actors from exercising or refraining from exercising their delegated powers.

Keywords: Secularism, Theocracy, Constitutional Amendment, Constitutional Interpretation, Unamendable Constitutional Provision, Unamendability, Informal Amendment, Canada, Iran, Turkey, India, Unconstitutional Constitutional Amendment, Formal Amendment, Informal Amendment