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Article Review/Response: Carlos Bernal-Pulido and Yaniv Roznai on Unconstitutional Constitutional Amendments

[Editor’s Note: In this installment of I•CONnect’s Article Review/Response Series, Yaniv Roznai reviews Carlos Bernal-Pulido’s recent article in I•CON on Unconstitutional Constitutional Amendments in the Case Study of Colombia: An Analysis of the Justification and Meaning of the Constitutional Replacement Doctrine. Carlos Bernal-Pulido then responds to the review.]

Review by Yaniv Roznai: Is Judicial Review of Constitutional Amendments Undemocratic? 

Yaniv Roznai, London School of Economics

In an excellent article recently published in ICON, Carlos Bernal analyzes the practice of judicial review of constitutional amendments in Colombia according to what has become to be known as the “constitutional replacement doctrine”.[1] Briefly put, while the Colombian Constitution grants the Constitutional Court the authority to review constitutional amendment only with regards to their procedure, not their substance, the Constitutional Court had developed a doctrine according to which a procedural judicial review must include whether an amendment was issued by the competent authority. Since, according to the Court, the power to amend the Constitution is not the power the replace the Constitution, the Court has the authority to examine whether constitutional amendments truly modify the Constitution or completely replace it – an act which would be considered ultra vires.

This technique itself is not uncommon.

I have elsewhere (together with Serkan Yolcu) criticized the Turkish Constitutional Court’s jurisprudence extending its formal jurisdiction to review constitutional amendments as to include examination as to whether constitutional amendments are contrary to the unamendable characteristics of the republic as provided in the Constitution, thus allowing for a substantive review.[2] Especially in States where the Constitution contains different procedures for a “total revision” and a “partial revision” of the Constitution, Courts have often declared themselves competent to review whether the content of amendments affect certain basic principles of the constitution which would be considered as a total revision. This is the case, for example, in Austria and Nicaragua.[3] All these are in fact cases of substantive judicial review – which concerns the amendment’s content – dressed as  formal or procedural review. This seems to point that Joel Colón-Ríos was right to claim that “in the context of constitutional reform, procedure and substance overlap with each other.”[4]

Carlos Bernal’s article raises many interesting issues, but in this post I want to focus only on one point of Bernal’s article and that is the “democratic deficiency” raised by judicial review of constitutional amendments.[5] According to Bernal, the Constitutional Court’s justification for reviewing constitutional amendments has not managed to overcome the democratic challenge that can be raised against it: “given that the constitution was created by the people, the people themselves, and not the Court, should have the authority to determine what are the essential elements of the constitution. If the people themselves, directly or through their representatives, have agreed to pass a constitutional amendment, it is because they have decided that the amended element is not an essential element. This decision should be final.”[6] In other words, it is the people and their representatives should have supremacy in deciding what the constitution is and not the court. This should be especially true with regard to the constitution’s basic principles.

Is judicial review of constitutional amendments directed at preserving the basic principles of the constitution always undemocratic?

At the outset, it should be stated that the familiar democratic challenge judicial review faces,[7] is intensified when it comes to judicial review of constitutional amendments. One of the arguments defending judicial review of ordinary legislation is that courts do not necessarily possess the last word since unpopular judicial decisions may instigate constitutional amendments to overturn them. Nonetheless, if courts may review even constitutional amendments – this democratic check would arguably disappear.

The basic premise it that the ability to amend the constitutional document is an essential element of any democratic compact, since a self-governing people ought to be able to challenge, revise or reform its basic commitments. Unamendability (in the form of unamendable provisions or implied limitations in the form of the “basic structure doctrine” or the “constitutional replacement doctrine”) positions certain rules or values not only above ordinary politics but also above constitutional politics. By not allowing majorities – even super-majorities – to modify these rules or values, unamendability is in clear tension with democratic principles. Critics argue that unamendability “betrays one of democracy’s most attractive legacies: the ability to modify law”,[8] or denies “citizens the democratic right to amend their own constitution and in so doing divest[s] them for the basic sovereign rights of popular choice and continuing self-definition”.[9]  Hence, there is no wonder that some view unamendability as a “constitutional dictatorship” or “a legal authoritarianism”.

Whether limitations on the amending power and their judicial enforcement are “undemocratic” involves, I believe, four separate aspects. The first is the unamendability itself. i.e. whether the absolute entrenchment itself of any subject (regardless of its content) is undemocratic. The second is whether the content of the protected unamendable subject is undemocratic, i.e., whether the unamendable value or institution serves democratic ends or contradicts them. The third is the scope of the unamendability – how broad and detailed is the prohibition on constitutional amendments, and the fourth is the judicial enforcement of unamendability. In the following paragraphs, I will address each of these four aspects in order.

Any answer to these different questions depends on what one considers to be ‘democracy’. If one considers democracy as purely procedural, i.e. simply as a system of self-government in which citizens have the ability to make majority collective decisions, then surely unamendability is ‘undemocratic’ in some respect. Nonetheless, democracy, as a system of government, does not sum up with majoritarian rule making. A decision by 90% of a state’s population to annihilate the rest 10% might not be considered a democratic decision. Hence, if one considers democracy to be more than just majoritarianism, to include protection of certain basic rights and principles, this adds a substantive pre-condition for a democracy.[10] As Frank Michelman wrote about the procedural and substantive approaches to democracy:

Democracy is a demanding normative idea, an idea with content, however uncertain or disputable that content may be. Maybe everyone agrees that democracy connotes a procedure of joint decision by many persons somehow acting together. But no less essentially, it connotes a socially constituted relationship among parties to the procedure. You will not, I hope, regard a political procedure as democratic … unless participants enter the procedure in the appropriate relations of equality, independence, freedom, and security, vis-à-vis one another and vis-à-vis the political collective and its powers. [11]

In that respect, entrenching certain principles, institutions and values which characterize modern democracy in the substantive sense is not necessarily undemocratic. Therefore, the argument that any pre-commitments constraining the amendment power present a challenge to democracy relies on a narrow view of democracy. It confuses democracy with a mere majority. As I note below, judicial review of constitutional amendment may perhaps be anti-majoritarian, yet it may accord with a theory of democracy that conceives of democracy as more than merely a people’s majority, but rather a constitutional democracy based on values and fundamental rights.[12]

With regard to the first aspect, there is no doubt that the unamendability of provisions, norms or legal principles which places them beyond the reach of any constitutional power or parliament majority, exacerbates the counter-majoritarian difficulty.[13] But then again, unamendability, as a counter-majoritarian institution, aims to neutralize the dangers of majoritatianism.[14] If we recognize constitutionalism as a system of higher law according to which democratic majoritarianism must give way to certain commitments to principles, or as indispensable legal limits to governmental power, unamendability simply takes this idea to its extreme. However this is only a matter of a degree not of a kind. As I note elsewhere, the constitutional amendment power – like any other power within the constitutional scheme – must be limited. It is simply an indispensable consequence of the organization of powers in the context of a limited government.[15] Moreover, certain unamendability could be viewed not as undemocratic but rather as a tool forestalling the possibility of a democracy’s self-destruction. Even if one conceives limitations on the amending power as undemocratic, the consequences of the alternatives – next to which unamendability might be seen as a necessary evil – must also be considered. Especially in weak democracies, judicial review of constitutional amendments may strengthen democracy rather than be deemed undemocratic. As Samuel Issacharoff writes, “with the aim of protecting democracies from collapsing into autocratic power, the oversight of constitutional courts provides a constitutional remedy for a latent democratic disability.”[16]

With regard to the second issue – the content of the unamendable provisions – a clear answer cannot be given categorically, and every case must be judged by its own merits. Unamendable provisions serve different aims. Some unamendable provisions can hardly be considered as a pre-condition for democracy in the substantive sense.[17] It is clear that unamendability can protect issues which most people would considered as ‘desirable’ democratic values, such as fundamental rights, separation of powers or the rule of law. However, they can also protect “undesirable” principles or practices, from democratic or liberal perspectives, such as the Corwin amendment which was proposed in 1860 and aimed to entrench slavery.[18] Such an unamendable provision would be undemocratic from both the procedural and substantive notions of democracy.

With regard to the scope of the unamendability, the more detailed the unamendable provision is, and the wider its scope, the greater its tension with democracy, because it would place a larger number of principles or rules beyond the reach of any majority. Without the ability of citizens to participate in debates with regards to society’s basic values, and in the absence of any mechanism to modify these values, civil motivation to participate in any decision-making process would probably deteriorate, and the public debate would be replaced by apathy. If that is true, unamendability risks impoverishing democratic debates. In response to this concern, it should be noted that unamendability does not necessarily impoverish popular debates regarding society’s values, on the contrary – it might place them at the focus of public debate. First, the mere act of unamendability of certain values might place them at the center of public debate when otherwise such values might not have been even disputed. Second, unamendability creates a “chilling effect” leading to hesitation before repealing an unamendable constitutional subject. This chilling effect gives time for political and public deliberations regarding the protected constitutional subject and puts it at the center of public agenda. In any event, as a matter of de lege ferenda, unamendability, being a controversial and complex instrument, should be reserved only for the most basic principles of the constitutional order.

As for the fourth issue, judicial review of amendments, the theory of limitations on the amendment power admits the problem of an unelected and unaccountable judiciary overriding the people’s representatives’ decisions. Surely, endowing courts with competence to declare constitutional amendments unconstitutional exacerbates the counter-majoritarian difficulty embodied in the situation of a non-elected court invalidating legislation enacted by a legislature. How can a small, often divided, set of judges replace the democratic judgment of the people and their representatives? As Rory O’Connell correctly noted, allowing courts to review constitutional amendments might turn the “people’s guardian of the constitution against politicians”, into “a guardian of the constitution against all comers”.[19] Nonetheless, at least with regard to explicit limits on the amendment power (contrary to implicit ones), Michel Rosenfeld was right to state that “any countermajoritarian difficulty would have to be ascribed to the constitution itself rather to judicial interpretation”.[20]

Furthermore, the theory underpinning the Colombian “constitutional replacement doctrine” distinguishes between the power to amend the constitution and the power to replace the constitution; to constitution a new constitution. The latter is what I term “primary constituent power” – which belongs to the people; and the former “amendment power” (which I term “secondary constituent power”) which is an instituted, derived power of constitutional organs to amend the constitution. But why does this infer limitability? Surely, one may claim – as Carlos Bernal has – that this is a “clear case of a non-sequitur” since it does not follow from the distinction between primary and secondary constituent power that the amending power is limited “for it is conceptually possible for the derivative constituent power to observe the procedural requirements and, at the same time, derogate the Constitution or replace it with a new one.”[21] Allow me to offer a possible reply. The amendment power is a delegated power and consequently, it acts as trustee of “the people” in their primary constituent power. As a trustee the amending power possesses only fiduciary power hence it must be ipso facto intrinsically limited by nature. Conceived in terms of delegation, certain acts by the constitutional amendment authority could be considered as going far beyond permissible bounds, since they would flout the terms of the “delegation”.[22]

When adjudicating constitutional amendments vis-à-vis unamendable (explicitly or implicitly) principles the court is not acting in a completely undemocratic manner, for it has the support of the high authority of the primary constituent power  when its decisions are compatible with the constitution’s fundamental principles. In other words, judicial review expresses the democratic base of the constitution. i.e., it gives expression to the will of “the people” as a supra-legislative and superior legal norm. This will of “the people” conflicts with the present will of the political majority as expressed by the amending power. Judicial review of amendments does not conflict with this will. It “merely” articulates a different will, a deeper one or more basic one, if you like. The conflict that the court then decides is between the will of the people (exercised by the primary constituent power) – a supra-temporal will which lasts for long terms – expressed in the basic principles of the constitution, and the temporary political majority expressed in a constitutional amendment. According to this reasoning, judicial review of constitutional amendment is not only not undemocratic (or even anti-majoritarian in a way), rather it is an expression of the will of the people as manifested in the constitution.

Note, that this is not originalism. While originalism is grounded on the notion that the will of past supermajorities should be preferred to that of present majorities, the theory distinguishing between primary and secondary constituent power contends that constitutional provisions are not fixed in time and can be changed (through interpretations or amendments). But the Constitution’s basic principles – which grant it its identity – should only be changed through the emergence of the primary constituent power. Therefore, this theory does not necessarily inhibit the people from engaging in the political process and deliberations.

Whereas this post is not wide enough to elaborate on this issue, I shall only state that my own view is closer to the democratic principle of popular sovereignty as expressed by Akhil Reed Amar’s constitutional theory. According Amar, in Article V of the U.S. Constitution, the people (without limiting themselves) delegate the power to ordinary government to amend the constitution. The people, who are the source of the Constitution, retain the right to revise the Constitution themselves by a majority of voters, via referendum or special convention, even outside of the amendment process.[23] Another approach is not the democratic principle of popular sovereignty but the “fact of sovereign incarnation and the concomitant relaxation of all principles”. This is Lior Barshak’s theory of a high degree of communal body’s involvement which allows sovereignty to step forward.[24] These two theories manage to mitigate the democratic challenge to judicial review of constitutional amendments because in both theories, it is the people in their capacity as holders of the primary constituent power, not the courts, who are the final arbiters of society’s basic values.

Accordingly, Bernal’s approach and mine are not so distinct. Bernal claims that “If the people have the authority to decide their long-term interests and values and to guarantee them by means of the enactment of the constitution, they consequently have the power to change their mind concerning those interests and values, thus their decisions about it should be final.”[25] That is correct, but the question is in which capacity. It is my claim that through the emergence of the primary constituent power – contra to the more limited amending power – even the most basic principles of the society can be reformed. In that respect, David Landau is correct that we need a “reliable metric for distinguishing genuine exercises of the people’s will from fake or manipulated exercises”[26] – and that is the deeper question.

 


[1] Carlos Bernal, Unconstitutional Constitutional Amendments in the case Study of Colombia: An analysis of the Justification and Meaning of the Constitutional Replacement Doctrine, 11 Int’l J. Const. L. 339 (2013).

[2] Yaniv Roznai, Serkan Yolcu, An Unconstitutional Constitutional Amendment – The Turkish Perspective: A comment on the Turkish Constitutional Court’s headscarf decision, 10(1) Int’l J. Const. L. 175, 195-202 (2012).

[3] On Austria see: Kemal Gözler, Judicial Review of Constitutional Amendments – A Comparative Study 34-39 (2008); Alexander Somek, On the Constitutional Court’s Total Revision of Austrian Constitutional Law, 32 Isr. L. Rev. 567 (1998); Otto Pfersmann, Unconstitutional Constitutional Amendments: A Normativist Approach, 67 ZÖR 81 (2012). On Nicaragua see: Stephen J. Schinably, Emerging International Law Constraints on Constitutional Structure and Revision: A Preliminary Appraisal, 62 U. Miami L. Rev. 417, 461-73 (2007-2008).

[4] Joel Colón-Ríos, Weak Constitutionalism: Democratic Legitimacy and the Question of Constituent Power 134 (2012).

[5] Bernal, supra note 1, at 346-350.

[6] Bernal, supra note 1, at 347.

[7] See e.g. Jeremy Waldron, The Core of the Case against Judicial Review, 115 Yale L.J. 1346 (2006).

[8] Melissa Schwartzberg, Democracy and Legal Change 2 (2009).

[9] Richard Albert, Constitutional Handcuffs, 42(3) Arizona State L. J. 663, 667 (2010).

[10]See e.g., Ronald Dworkin, A Bill of Rights for Britain 14, 35 (Chatto & Windus, 1990); Aharon Barak, The Judge in a Democracy 23-26 (Princeton University Press, 2009).

[11] Frank I. Michelman, Brennan and Democracy – The 1996-97 Brennan Center Symposium Lecture, 86 Cal. L. Rev. 399, 419 (1998). I thank Richard Albert for this reference.

[12] Dominique Rousseau, The Constitutional Judge: Master or Slave of the Constitution?, in Michel Rosenfeld ed., Constitutionalism, Identity, Difference, and Legitimacy: Theoretical Perspectives 261, 273-282 (Duke University Press, 1994).

[13] See Michael Freitas Mohallem, Immutable clauses and judicial review in India, Brazil and South Africa: expanding constitutional courts’ authority, 15(5) The Int’l J. Hum. Rts. 765, 766-767 (2011).

[14] Albert, supra note 9, at 675, 715.

[15] Yaniv Roznai, Unconstitutional Constitutional Amendments – The Migration and Success of a Constitutional Idea, 61(3) Am. J. Com. L. 657, 717 (2013). See also C.V. Keshavamurthy, Amending Power Under The Indian Constitution—Basic Structure Limitations 89 (1982).

[16] Samuel Issacharoff, Managing Conflict Through Democracy, in Colin Harvey and Alex Schwartz (eds.), Rights in Divided Societies 33, 45 (Hart Publishing, 2012).

[17] For example, Article 288(e) of the Portuguese Constitution of 1976 protects from amendments ‘The rights of the workers, workers’ committees, and trade unions’.

[18] See John R. Vile, Encyclopaedia of constitutional amendments, proposed amendments, and amending issues, 1789-2002 175 (2nd ed., ABC-CLIO, 2003). According to Richard Albert, another way of reading the Corwin Amendment is not as making slavery absolutely unamendable but only as restricting congressional power. See Richard Albert, The Unamendable Corwin Amendment, Int’l J. Const. L. Blog (February 27, 2013), www.iconnectblog.com/2013/02/the-unamendable-corwin-amendment

[19] Rory O’Connell, Guardians of the Constitution: Unconstitutional Constitutional Norms, 4 J.C.L. 48, 51 (1999).

[20]Michel Rosenfeld, Constitutional Adjudication in Europe and The United States: Paradoxes and Contrasts, in European and US constitutionalism 165, 186 fn 80 (Council of Europe, 2005).

[21]Bernal, supra note 1, at 343 (see also at 348).

[22] I elaborate on this point in my PhD Thesis entitled “Unconstitutional Constitutional Amendments – A Theoretical and Comparative Study of the Constitutional Amendment Powers and their Limits” (in-progress, LSE).

[23]Akhil R. Amar, Of Sovereignty and Federalism, 96 Yale L. J. (1987), 1425; Akhil R. Amar, Philadelphia Revisited: Amending the Constitution Outside Article V, 55 U. Chi. L. Rev. (1988), 1043, 1054-8; Akhil R. Amar, The Consent of the Governed: Constitutional Amendment Outside Article V, 94 Colum. L. Rev. (1994), 457, 457-500; Akhil R. Amar, Popular Sovereignty and Constitutional Amendment, in Sanford Levinson, ed., Responding to Imperfection: The Theory and Practice of Constitutional Amendment (1995), 89, 89-101.

[24] Lior Barshack, Constituent Power as Body: Outline of a Constitutional Theology, 56 University of Toronto L. J. 185, 202 (2006). See also at 212-213. Elsewhere Barshack elaborated on his theory which is a version of “transcendent sovereignty” according to which “sovereignty does not vest exclusively in the past. Rather, it belongs to the group as an immortal entity that retains its identity through past, present, and future generations. It belongs to present and future generations much as it belongs to the dead.” See Lior Barshack, Time and the Constitution, 7(4) Int’l J. Const. L. 553, 554 (2009).

[25] Bernal, supra note 1, at 348.

[26] David Landau, Should the Unconstitutional Constitutional Amendments Doctrine be Part of the Canon?, Int’l J. Const. L. Blog (June 10, 2013), www.iconnectblog.com/2013/06/should-the-unconstitutional-constitutional-amendments-doctrine-be-part-of-the-canon/. See also David Landau, Abusive Constitutionalism, UC Davis Law Review (Forthcoming, 2013), 49-56, http://ssrn.com/abstract=2244629

 

Reply by Carlos Bernal-Pulido: On the Democratic Challenge to Judicial Review of Constitutional Amendments

Carlos Bernal[1], Macquarie Law School, Sydney (Australia).

Dissolving and Overcoming the Democratic Challenge

In “Is Judicial Review of Constitutional Amendments Undemocratic?” Yaniv Roznai addresses a controversial issue that I identify in my article: “Unconstitutional Constitutional Amendments in the case Study of Colombia”. The issue is why judges should be empowered to review the content of constitutional amendments passed by the people or their representatives. In my paper, this is termed the democratic challenge.

Roznai suggests a strategy to dissolve and to overcome this challenge. He proposes that awareness about two facts would dissolve the democratic challenge. First, it is not undemocratic if judges enforce unanmendable provisions that entrench “certain principles, institutions and values which characterize modern democracy”. This is because the enforcement of such provisions acts as a “tool forestalling the possibility of a democracy’s self-destruction”. Second, the enforcement of unamendable parts of the constitution does not rule out, but in fact encourages, democratic debate regarding the amendability of the “most basic principles of the constitutional order”. It achieves this by placing this debate “at the center of the public agenda”.

Furthermore, Roznai states that the distinction between primary and secondary constituent power would provide a solution to the challenge. Substantive review of constitutional amendments would not be undemocratic if we accept the following assumptions: the primary constituent power is the people who made the constitution; the secondary constituent power is the amending power that acts as “trustee” or “delegate” of the people; as a delegate, the amending power is limited; finally, “when adjudicating constitutional amendments vis-à-vis unamendable (explicitly or implicitly) principles” judges have the “support” of the “primary constituent power”. Judges give expression to the “deeper”, “more basic”, “supra-temporal” will of the people, and prioritize it over “the present will of the political majority as expressed by the amending power”. Only the primary constituent power can change the fundamental principles by enacting a new constitution.

Here I would like to respond to Roznai’s claims by discussing five points: the pervasiveness of the democratic challenge; the problem of judicial supremacy; the superfluity of the distinction between primary and secondary constituent power; the challenge to the delegation theory; and implicit limits to the amending power.

1. The Pervasiveness of the Democratic Challenge

The democratic challenge is pervasive in judicial review of constitutional amendments. This challenge even applies to the enforcement of unamendable provisions that entrench the basic elements of democracy. Roznai would be right in denying this claim, but only if it were true that the people always share: a) common intuitions and consensus as to what the “principles, institutions and values which characterize modern democracy” are, and b) a common understanding as to what is the unamendable scope of constitutional provisions enshrining those principles. However, this is not the case. When reasonable disagreements arise, why should the views of a court prevail over the views of the current, actual people or their representatives?

2. The Problem of Judicial Supremacy

Roznai’s intuition that judicial review of constitutional amendments would encourage democratic debate on unamendable parts of the constitution is sound. Nevertheless, this intuition cannot dissolve the democratic challenge. It overlooks the core issue, namely, the problem of judicial supremacy. Even after a public debate on the amendability of the constitution, judges would still have the final word about what can be amended. Thus, the democratic challenge still applies.

3. The Superfluity of the Distinction between Primary and Secondary Constituent Power

The potential of the distinction between primary and secondary constituent powers to provide a solution to the democratic challenge is improbable. The point of this distinction is to explain the limited character of the amending power. The amending power can be the subject of two kinds of limitations: procedural and substantial. Substantial limitations can be explicit or implicit. Unamendability clauses such as article 79.3 of the German Basic Law express explicit substantial limitations. The amending power has the duty to observe procedural and explicit substantial limitations due to two grounds. First, the amending authority can change the constitution because it has been empowered to do so.  By definition, an empowerment is limited to the specific competences that the constitution attributes to each authority. These competences can only be exercised by procedure and within the scope of the explicit limitations determined by the constitution. Second, the principle of the rule of law requires all political powers to be exercised according to the law. Concerning the concept of empowerment and the principle of the rule of law, the amending power is no different from any other constituted power. These two grounds are sufficient to explain the limited nature of the amending power. Thus, the concept of the secondary constituent power is superfluous. It does not add any further clarification.

The distinction between primary and secondary constituent powers would not be superfluous if it could justify the judicial enforcement of implicit limits to the amending power. However, this is not the case. First, the idea that the secondary constituent power is implicitly limited is an oxymoron. A power can be “constituent” or “limited” but it cannot be both. A constituent power is, by definition, unlimited. The power to create and change the constitutional law cannot be limited by the constitutional law. In this sense, the amending power is not a (secondary) constituent but only a constituted power, whose exercise is limited by the constitutional law.

Second, the exercise of the constituent power is a contingent fact. If the people are sovereign, they can exercise this power anytime. They can revise the essence of the constitution by means of a new contingent fact that can be carried out in many ways. One of these ways is through the implementation of the amending power. Naturally, as any agent, the constituent power can commit itself to respect certain limitations. This explains the binding force of the procedural and substantial explicit limitations to the amending power. However, beyond those limitations, the people can freely exercise the constituent power anytime, directly or by means of their representatives, using the mechanisms of the amending power. The limited nature of the amending power cannot justify per se the judicial pseudo-identification of implicit pre-commitments that can allegedly be attributed to the constituent power.

4. The Challenge to the Delegation Theory

Roznai’s suggestion according to which the amending power is a secondary constituent power that acts as “trustee” or “delegate” of the people, is very interesting. Naturally, this suggestion cannot be fully evaluated before it is spelled out. However, the delegation theory seems to be subject to the same challenge of superfluity that applies to the concept of secondary constituent power. Moreover, a problem with the identification of the delegator is already foreseeable. The delegator is the people. Nevertheless, the concept of ‘the people’ is fuzzy. It cannot be reduced to the set of persons who actually enacted the constitution. Consequently, it cannot be opposed (as Roznai does) to the current “political majority”. The people is both a past and also a present, actual, plural subject that, sometimes, acts by means of the political majority. Far more difficult to accept is Roznai’s insinuation that the people have a “deeper”, “more basic”, and “supra-temporal” will. This implication is ontologically odd. It would imply that the people is a super-agent capable of having mental states such as desires connected to a will. Moreover, how can those desires be supra-temporal?

5. Implicit Limits to the Amending Power

The question is then whether the democratic challenge is insurmountable concerning implicit limits to the amending power. Given current trends of abusing the power to change the constitution,[2] overcoming this challenge is a high priority for constitutional theory.

In the piece that gave rise to this discussion, I introduced two arguments that aim to overcome the democratic challenge concerning implicit limits: one conceptual and one normative. Both arguments belong to a pragmatic strategy, according to which the exercise of the amending power cannot contradict the presuppositions of its own existence. The conceptual argument states that the power to amend the constitution cannot comprise the power to denaturalize it. The power to modify the constitution necessarily presupposes that a constitution must exist prior to and following the exercise of this power. Thus, the amending power cannot transform the constitution into a different kind of entity by depriving it of one or more of its essential conceptual elements: rights, rule of law, and separation of powers. The normative argument is grounded on the ontological claim that constitutions are human-made entities. We, the people, create them, acting together intentionally, with the specific purpose of solving problems of coordination and basic moral disagreements. Every constitution implies the adoption of a specific kind of political system for solving these problems. Current constitutions institutionalize the ideal of deliberative democracy as a system to solve these problems. Accordingly, the amending power cannot severely change the constitution in a way that the political system can no longer be considered as an instance of deliberative democracy. Judges are empowered to enforce the implicit limits to the amending power that can be drawn from these arguments. To do so, they should apply a standard of deference: the more the people themselves engage in fair deliberation and decide to amend the constitution, the more deference judges should show in enforcing these limits. Similarly, the less an amendment is the result of a fair discourse among the people themselves, the stricter the judges should be in protecting deliberative democracy in the name of the (past and current) people.

Conclusion

In summary: the democratic challenge is pervasive in all instances of judicial supremacy concerning constitutional amendments. The distinction between primary and secondary constituent power cannot provide a basis for overcoming this challenge. The delegation theory also faces significant obstacles for accomplishing this aim. By contrast, the democratic challenge can be solved on the basis of the argument concerning the concept of constitutional amendment, the normative argument regarding the institutionalization of deliberative democracy, and the use of a standard of judicial deference.

Suggested Citation: Carlos Bernal-Pulido & Yaniv Roznai, Article Review/Response, Unconstitutional Constitutional Amendments in the Case Study of Colombia, Int’l J. Const. L. Blog, October 17, 2013, available at: http://www.iconnectblog.com/2013/10/article-review-response-carlos-bernal-pulido-and-yaniv-roznai-on-unconstitutional-constitutional-amendments


[1] I thank Joel Colon-Rios for valuable comments of a draft of this manuscript and Ashleigh Whitthaker for helpful substantial remarks and advice on English style matters.

[2] See: David Landau, “Abusive Constitutionalism”, UC Davis Law Review (Forthcoming, 2013), 49-56, http://ssrn.com/abstract=2244629Landau

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Published on October 17, 2013
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3 Responses

  1. The issues can be clarified by examining the roots in social contract theory, from which we can arrive at the understanding that every polity has at least four constitutions: (1) the constitution of nature (natural law); (2) the constitution of society (social contract); (3) the constitution of the state (society plus territory); and (4) the constitution of government. Each of these is subject to the ones above it. Thus, a constitution of government (or amendment thereof) that is inconsistent with the constitution of nature, society, or the state, is unconstitutional. The problem, of course, is identifying the requirements of these prior unwritten constitutions. See Social Contract and Constitutional Republics.

  2. Andrew Arato

    Gabor Halmai as well as myself have dealt with these issues exhaustively and comparatively in relation to the Hungarian and Turkish courts in Constellations 17:2; 18:3; 19: 2 as well as Philosophy and Social Criticism 36: 3-4. I mention this in case someone wishes to read beyond this rather narrow version of the debate. The question of substance as procedure appears in several of my articles dealing with Turkey. Ulrich Preuss has dealt with the same issues in Israeli Law Review 44:3. The discusssion goes back to Lambert Gouvernement des juges, Hauriou’s work as well as Carl Schmitt’s Verfassungslehre. These works, along with W. Murphy’s essays, offer many more justifications for amendment review than discussed here.

  3. Alice Pleasance

    “The problem, of course, is identifying the requirements of these prior unwritten constitutions”.

    That is the grab-bag principle. Make it up as you go along. Beloved of judicial activists under political control of those who appoint them.

    They don the robes and pronounce. We are impressed, and believe them; often wrongly. In particular when they are a final appellate jurisdiction. And then, their usurpation of constituent power would appear to be beyond reach and control.

    As Wade said (H. W. R. Wade, “The Basis of Legal Sovereignty”, [1955] Camb. L.J. 172), and I am possibly paraphrasing: “look to the Judges and see to whom they give their obedience”.

    Therefore, I prefer to limit my understanding of the word “constitution” to the one most people mean when they speak of amending the constitution. They mean the lawfully extant written constitution.

    In the case of Canada, for example, those elected or appointed under the Lawful Constitution, which is to say the British North America Act, 1867 (not the 1982 coup d’état) have no powers beyond those expressly conferred. They have no options where particular acts are expressly denied; and are necessarily limited overall by the nature of the form of government, the division of powers, powers withheld, and the purpose of the constitutional statute(s).

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