From an Unconstitutional Constitutional Amendment to an Unconstitutional Constitution? Lessons From Honduras

Global Constitutionalism, Forthcoming

FSU College of Law, Public Law Research Paper No. 886

24 Pages Posted: 25 Jul 2018

See all articles by David Landau

David Landau

Florida State University - College of Law

Rosalind Dixon

University of New South Wales (UNSW) - Faculty of Law

Yaniv Roznai

Interdisciplinary Center (IDC) Herzliya - Radzyner School of Law

Date Written: July 4, 2018

Abstract

The unconstitutional constitutional amendment doctrine has emerged as a highly successful, albeit still controversial, export in comparative constitutional law. The doctrine has often been defended as protecting a delegation from the people to the political institutions that they created. Other work has noted the doctrine’s potential utility in guarding against abusive constitutionalism. In this piece, we consider how these justifications fare when expanded to encompass claims against the original constitution itself, rather than a later amendment to the text. That is, beyond the unconstitutional constitutional amendment doctrine, can or should there be a doctrine of an unconstitutional constitution? Our question is spurred by a puzzling 2015 case from Honduras where the Supreme Court held an unamendable one-term limit on presidential terms, as well as protective provisions punishing attempts to alter that limit, to be unconstitutional. What is particularly striking about the case is that these provisions were not later amendments to the constitution, but rather parts of the original 1982 constitution itself. Thus, this article examines the possibility of ‘an unconstitutional constitution’.

Keywords: unconstitutional constitutional amendments, abusive constitutionalism, judicial review of constitutional norms, term limits, Honduras

Suggested Citation

Landau, David and Dixon, Rosalind and Roznai, Yaniv, From an Unconstitutional Constitutional Amendment to an Unconstitutional Constitution? Lessons From Honduras (July 4, 2018). Global Constitutionalism, Forthcoming ; FSU College of Law, Public Law Research Paper No. 886. Available at SSRN: https://ssrn.com/abstract=3208185

David Landau

Florida State University - College of Law ( email )

425 W. Jefferson Street
Tallahassee, FL 32306
United States

Rosalind Dixon

University of New South Wales (UNSW) - Faculty of Law ( email )

Kensington, New South Wales 2052
Australia

Yaniv Roznai (Contact Author)

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

P.O. Box 167
Herzliya, 46150
Israel

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