Emergency Unamendability: Limitations on Constitutional Amendment in Extreme Conditions

Abstract

The study of constitutional amendment has grown into a popular field of scholarly research but there remain many questions left unanswered. One of the most pressing is why constitutional designers choose to impose limitations on the amendment power in periods of emergency, and equally importantly whether these limitations can ever be effective. In this Essay, we outline the many forms of limitations on constitutional amendment in emergencies, what we call “emergency unamendability.” We then trace their causes and origins, we theorize their foundations, we explain how and why they are susceptible to violation, and we propose alternative constitutional design strategies that can frustrate—though never quite prevent—the exercise of the amendment power in emergencies. Our principal purposes are to introduce this phenomenon of emergency unamendability and to encourage further research into the subject.

Keywords: Constitutional Amendment, Emergency, Exception, Crisis, Constitutional Change, Unamendabillity, Eternity Clause, Judicial Review, Unconstitutional Constitutional Amendment, Regency, Succession, Sunset Rules, Constitution-Making, Benign Dictator