Clownstitutionalism: Making a Joke of the Constitution by Abuse of Constituent Power

15 Jurídica Ibero (forthcoming)

40 Pages Posted: 28 Aug 2023 Last revised: 21 Nov 2023

See all articles by Yaniv Roznai

Yaniv Roznai

Interdisciplinary Center (IDC) Herzliya - Radzyner School of Law

Date Written: August 25, 2023

Abstract

In the era of populism and democratic backsliding, more and more political actors have been using formal amendment procedures to undermine constitutionalism. Such amendments may be regarded as legal if they formally conform with the procedure for their enactment, and do not replace the constitutional identity with a new one or undermine unamendable norms. But they are still considered as illegitimate; they are Kosher but stink. In response, in recent years, courts around the world have begun developing different doctrines of abuse or misuse of constituent power. Particularly in Israel, in light of increasing uses of basic laws for narrow, personal and temporary political interests, the Supreme Court found itself developing a judicial doctrine to counter the misuse of constituent power. In this article, I suggest that the notion of abuse of constituent or amendment power must be derived from the very purpose of constitutions. Against the backdrop of the different purposes of modern constitutions, I develop a theory of abuse of amendment power that combines formal and substantive illegitimate uses of amendments, which, when combined, raise a strong suspicion that the amending power is being abused.

Keywords: abusive constitutionalism, unconstitutional constitutional amendments, good faith, bad faith, Israel, constituent power, populism, constitutional retrogression

Suggested Citation

Roznai, Yaniv, Clownstitutionalism: Making a Joke of the Constitution by Abuse of Constituent Power (August 25, 2023). 15 Jurídica Ibero (forthcoming) , Available at SSRN: https://ssrn.com/abstract=4552436 or http://dx.doi.org/10.2139/ssrn.4552436

Yaniv Roznai (Contact Author)

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

P.O. Box 167
Herzliya, 46150
Israel

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