by Tarik Olcay, PhD Candidate, School of Law, University of Glasgow
The uninformed observer could be forgiven for thinking that no such thing as an unconstitutional constitutional amendment exists. This concept, or in other words, the question of constitutionality of constitutional amendments, is a contentious one. It immediately calls for a clarification, a convincing definition of the constitution, and of what it means to be constitutional. A constitutional amendment, once it is enacted, is part of the constitution—how can it be unconstitutional? How does one infer what is untouchable in a constitution? Who is it in a constitutional order that can decide that a constitutional amendment is unconstitutional? What does constitutional unamendability mean, and what are its implications?
A powerful attempt to grapple with these challenging questions and their derivatives is on offer in Yaniv Roznai’s Unconstitutional Constitutional Amendments: the Limits of Amendment Powers, due to be published in February by the OUP. By studying the phenomenon of substantive limitations on formal constitutional amendments comparatively, exploring the nature and limits of “the amendment powers”, and putting forward a justification for the judicial enforcement of constitutionality of constitutional amendments, the book provides a compelling theory of constitutional unamendability.
The first thing that strikes the eye in this revised and updated version of Roznai’s doctoral thesis is the cover image: Richard Westall’s Sword of Damocles. Perhaps a spoiler to the sharp-eyed reader, it captures the dread of the amendment power and the bitter sanction it faces, which is placed atop menacingly by an anterior, and presumably superior, authority. Setting the scene thus dramatically, Roznai proceeds to demonstrate in what different ways this has come to be the case.
Part I of the book explores the phenomenon of constitutional unamendability from a comparative perspective. Looking at the practical and theoretical origins of explicit, implicit, and supra-constitutional unamendability, Roznai explains how the phenomenon has come about in different forms and demonstrates how the idea migrated across jurisdictions. Firstly, he looks at the explicitly incorporated unamendable constitutional clauses. After explaining the birth and proliferation of explicit unamendability, by empirically focusing on the values and principles that are deemed unamendable in current and historical state constitutions, he identifies five possible characteristics of unamendability: preservative, transformative, aspirational, conflictual, bricolage. For Roznai, unamendable provisions have something to do with a polity’s identity, and are “the genetic code of the constitution” (chapter 1). The more vexed issue is the idea of implicit unamendability, which holds that there are substantive limitations on the amendment power even where explicit unamendability is absent from a constitution. Roznai shows that implicit unamendability also has become a global phenomenon, especially through the establishment of the basic structure doctrine in India and its whole or partial adoption in various jurisdictions (chapter 2). Roznai then moves on to explore what he terms “supra-constitutional unamendability”, which comprises natural law and international law constraints on the amendment power, but finds that no such limitation exists as such. He notes that some constitutions make reference to natural law and international law limitations on constitutional amendments, but argues that as their normative value is dependent on the recognition by the state constitution, they are ultimately constitutional constraints (chapter 3).
In Part II, Roznai develops his argument for constitutional unamendability. First, he explores the nature of the constitutional amendment power, concluding that it is a sui generis power that rests within a spectrum between the constituent power and the ordinary legislative power. Drawing on the French doctrine distinguishing pouvoir constituant originaire and pouvoir constituant dérivé, he argues that the amendment power is a delegated “secondary constituent power”, authorised by ‘the people’s “primary constituent power” (chapter 4). Roznai then introduces the foundational structuralism argument, contending that there are basic features of every constitution that make up a specific “constitutional identity” and a hierarchy of constitutional values outwith the reach of the delegated amendment power (chapter 5). Furthermore, depending on the type of delegation as to its resemblance to the constituent power or the ordinary legislative power, Roznai argues that the amendment power is situated within a spectrum, and that the more it resembles the constituent power the wider the scope of its amendment authority (chapter 6).
Part III examines the judicial enforcement of constitutional unamendability. Employing the theory of delegation and foundational structuralism advanced in Part II, he provides a defence for substantive judicial review of constitutional amendments, even in cases where the constitution does not explicitly authorise the courts and regardless of whether there is explicit unamendability. He argues, among other things, that it is the judiciary’s role to uphold the vertical separation of (the primary and secondary constituent) powers (chapters 7 and 8). He also holds that the intensity of judicial scrutiny should increase where the amendment process is designed closer to ordinary legislative power, and proposes guidelines as to how courts should conduct a “foundational structuralist interpretation” and as to the standard of judicial review (chapter 8). Roznai is careful to separate the question of the constitutionality of constitutional amendments and its judicial enforcement, even if they are closely related issues. Although he does not dwell on it much, he seems to acknowledge that unamendability can be a political check too.
Undoubtedly, the book provides a wealth of advanced arguments in justifying the limitations on constitutional amendments. It will open up interesting lines of debate regarding, among others, constitutional identity, the legitimacy of judicial review, and constitutional design of amendment rules. In this instance, I shall highlight only two somewhat related points.
Firstly, Roznai bases his conception of the constitution upon an understanding that it is a coherently meaningful structure that manifests the will of ‘the people’. In justifying unamendability, his point is to defend democracy at a very fundamental level. He sacrifices the will of the contingent democratic majority for the greater good of protecting the foundational democratic decision underlying the constitution. He claims that “[u]namendability is … the ultimate expression of democracy” (p. 196). The limitations on the amendment power, accordingly, simply uphold the more fundamental democratic act of the primary constituent power, serving to preserve the ‘constitutional identity’. Roznai’s foundational structuralism argument thus seems to be indifferent to the substantive content of the constitutional identity, but requires the protection of any constitutional identity as adopted by the primary constituent power. Therefore, just as the principle of human dignity can be an unamendable principle in a constitution, the disenfranchisement of an ethnic minority can be an unamendable principle in another—both worthy of protection from the infringement of the amendment power. Foundational structuralism thus does not seem to entail normative considerations as to the content of protected principles. Yet, in his defence of unamendability, Roznai refers at times to democratically “desirable” and “undesirable” principles, (pp. 191-92) and to the “protection of basic rights” (p. 214). It is not entirely clear what democracy requires. For example, Roznai claims that the unamendability of the rights of trade unions in the Portuguese constitution is not a precondition for democracy (p. 192), but this could be challenged by certain strands of radical democracy or from the perspective of social rights constitutionalism. At one point, there is a reference to the co-originality thesis, but only lightly (p. 232). An explanation of where the book’s conception of constitutional democracy is grounded and what it regards as preconditions for democracy would have bolstered the general argument.
Secondly, there is a missing element with regard to justifying the book’s somewhat positivistic approach to constitutionalism. Roznai argues that even natural law and international law constraints on the amendment power are valid only if they are constitutionally recognised (p. 81). The state constitution thus seems to be the reference point for legal validity. This assumption, however, calls for a discussion of the legitimacy of the constitution. The state constitution, unlike constitutions of other organisations, has a comprehensive claim to govern everything under the state’s jurisdiction and does not allow opt-outs. The strength of the argument for the preservation of certain aspects of the constitution against fundamental changes through the institutions it creates, depends upon establishing what legitimises such an all-encompassing constitution. Roznai relies on ‘the people’ as the holder of the primary constituent power. However, he does not explain why and how this is the case. Is the sovereignty of ‘the people’ a natural law principle, or is it sheer force? Or is it simply a reference to a non-dynastic source of legitimacy? Furthermore, is it really ‘the people’ willing and speaking as one in this exercise? There is, at best, a degree of representation in the exercise of the primary constituent power. Therefore, it might not be as crucial as claimed that fundamental constitutional changes are decided by the supposedly unbound primary constituent power. It might even be the case that the amendment power is better placed in the name of ‘the people’, as it can work in a more orderly, more deliberative, and possibly more transparent and inclusionary manner with an institutionalised representative role—as long as it is not obstructed by the ‘constitutional identity’. One should keep in mind that the Sword of Damocles may not be, or indeed may never have been, in ‘the people’s reach. An explanation of why the state constitution is at the centre (or beginning) of normativity would have clarified the link between ‘the people’ and unamendability.
Overall, the book skilfully introduces the phenomenon of unconstitutional constitutional amendments and provides a sophisticated justification for constitutional unamendability. It unrelentingly resists the main criticisms to constitutional unamendability and provides cogent responses. It is also an important contribution to the comparative constitutional law literature, with the impressive breadth of its study of unamendability clauses. There are important lessons to be drawn from this comparative study for constitutional design purposes, especially in a time where constitutional transformation by way of formal constitutional amendment is more fashionable than ever. The book’s appeal is not only to those studying constitutional change, but also to scholars of comparative law and comparative politics, as well as those brooding over what it means to uphold democracy. It also promises to be an invaluable reference book with its extensive bibliography, as well as its incorporation of a 39-page appendix listing the explicit substantive unamendability clauses—or the absence thereof—in 742 past and current state constitutions that have been in effect from 1789 to 2015. Institutional and personal libraries alike had better make room for Unconstitutional Constitutional Amendments.
Unconstitutional Constitutional Amendments. The Limits of Amendment Powers, by Yaniv Roznai
(Oxford University Press, 2017. 368 pp. Hardback £60. ISBN 978-0-19-876879-1)