Unconstitutional Constitutional Change by Courts

23 Pages Posted: 18 Nov 2018

See all articles by Yaniv Roznai

Yaniv Roznai

Interdisciplinary Center (IDC) Herzliya - Radzyner School of Law

Date Written: October 27, 2018

Abstract

A response essay following Jonathan Marshfield’s article, “Courts and Informal Constitutional Change in the States.” Following Marshfield’s work, the essay examines that competence od courts to bring about revolutionary constitutional change through interpretation. The premise is that state constitutions, like many national constitutions, include certain unamendable constitutional subjects, principles, rules and institutions that are beyond the formal ordinary constitutional amendment power. Constitutional change, however, occurs not only through formal amendments but also through – what Marshfiled terms “informal amendments” through judicial interpretation.

Accordingly, the essay suggests, the constitutional designation of certain rules or principles as unamendable (first order formal unamendability) or even as subject to a more robust procedure of “revision” rather than “amendment” (second-order formal unamendability) raises the question whether courts are allowed to informally amend these basic principles or provisions in a radical manner so as to substantially replace the constitution with a new one. If amendment organs are limited by formal unamendability than courts may also be limited in their scope of generating informal constitutional amendments through judicial interpretation. Constitutional unamendability thus limits not only amending actors, but judges as well. Just as certain formal constitutional amendments may be considered constitutions it follows that certain informal state constitutional changes may similarly be deemed as unconstitutional.

Keywords: unconstitutional constitutional amendments, judicial interpretation, unamendability, constitutional change, courts, basic structure

Suggested Citation

Roznai, Yaniv, Unconstitutional Constitutional Change by Courts (October 27, 2018). New England Law Review, Vol. 51, No. 3, 2018. Available at SSRN: https://ssrn.com/abstract=3273956

Yaniv Roznai (Contact Author)

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

P.O. Box 167
Herzliya, 46150
Israel

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