The Formalist Resistance to Unconstitutional Constitutional Amendments

27 Pages Posted: 26 Jun 2018

See all articles by Richard Albert

Richard Albert

University of Texas at Austin - School of Law; Yale University - Law School; University of Toronto - Faculty of Law; Universidad Externado de Colombia - Facultad de Derecho; Interdisciplinary Center (IDC) Herzliyah - Radzyner School of Law

Malkhaz Nakashidze

Batumi Shota Rustaveli State University - School of Law; Boston College Law School

Tarik Olcay

Aston University

Date Written: June 13, 2018

Abstract

Many courts around the world have either asserted or exercised the power to invalidate a constitutional amendment. But we should not take the increasing prevalence of the doctrine of unconstitutional constitutional amendment as evidence of its appropriateness for all constitutional states. It is imperative that constitutional actors know that there is another answer to the question whether an amendment can be unconstitutional. We have three purposes in this Article, and we seek to fulfill each of them with reference to three jurisdictions in particular—France, Georgia and Turkey—whose constitutions and attendant constitutional practices have expressly rejected the doctrine in a way that reflects what we describe as their shared formalist resistance to the doctrine of unconstitutional constitutional amendment. We seek first to demonstrate that the doctrine of unconstitutional constitutional amendment has not yet matured into a global norm of constitutionalism. We seek also to explain how a jurisdiction that expressly rejects the idea of an unconstitutional constitutional amendment operates in the face an amendment that would otherwise be invalidated as unconstitutional in a jurisdiction that has adopted the doctrine. We finally seek to evaluate what is gained and lost in a constitutional state by rejecting the doctrine of unconstitutional constitutional amendment. We find that there are both democracy-enhancing and democracy-weakening features that follow from the choice to reject the doctrine outright. Our larger purpose is inherent in the project itself: to diversify our thinking about what risks becoming seen as a necessary feature of constitutionalism but that design and practice show plainly is not.

Keywords: Constitutional Amendment, Unconstitutional Constitutional Amendment, French Constitution, Georgian Constitution, Turkish Constitution, Formalism, Positivism, Formal Amendment, Informal Amendment, Constitutional Change, Conseil Constitutionnel

Suggested Citation

Albert, Richard and Nakashidze, Malkhaz and Olcay, Tarik, The Formalist Resistance to Unconstitutional Constitutional Amendments (June 13, 2018). Hastings Law Journal, Vol. 70, 2019, Forthcoming; U of Texas Law, Public Law Research Paper. Available at SSRN: https://ssrn.com/abstract=3195059

Richard Albert (Contact Author)

University of Texas at Austin - School of Law ( email )

727 East Dean Keeton Street
Austin, TX 78705
United States
512.213.1113 (Phone)

HOME PAGE: http://law.utexas.edu/faculty/richard-albert

Yale University - Law School

127 Wall Street
New Haven, CT 06520-8215
United States

HOME PAGE: http://www.law.yale.edu

University of Toronto - Faculty of Law ( email )

78 and 84 Queen's Park
Toronto, Ontario M5S 2C5
Canada

HOME PAGE: http://www.law.utoronto.ca

Universidad Externado de Colombia - Facultad de Derecho

Calle 12 # 1-17 este
Calle 12 0 83
Bogota D.C, Cundinamarca 3456
Colombia

HOME PAGE: http://https://www.uexternado.edu.co/derecho/

Interdisciplinary Center (IDC) Herzliyah - Radzyner School of Law ( email )

P.O. Box 167
Herzliya, 46150
Israel

HOME PAGE: http://https://www.idc.ac.il/en/schools/law/pages/home.aspx

Malkhaz Nakashidze

Batumi Shota Rustaveli State University - School of Law ( email )

35 Ninoshvili str.
Batumi, Adjara 6010
Georgia

HOME PAGE: https://bsu.edu.ge http://www.malkhaz-nakashidze.com

Boston College Law School ( email )

140 Commonwealth Avenue
Chestnut Hill, MA 02467
United States

HOME PAGE: http://https://www.bc.edu/bc-web/schools/law.html

Tarik Olcay

Aston University ( email )

Aston Triangle
Birmingham, B4 7ET
United Kingdom

Register to save articles to
your library

Register

Paper statistics

Downloads
204
Abstract Views
1,102
rank
152,614
PlumX Metrics