—Aslı Bâli, UCLA School of Law
[Editor’s note: This is one of our biweekly I-CONnect columns. Columns, while scholarly in accordance with the tone of the blog and about the same length as a normal blog post, are a bit more “op-ed” in nature than standard posts. For more information about our four columnists for 2017, see here.]
In my last post, I considered how to understand referenda in a context in which populists harness the engine of democratic processes to undermine basic democratic commitments. Of course, the question of democratic legitimacy is all the more acute when a referendum is used for the purpose of constitutional amendment. For this reason procedural protections to ensure that inclusive and deliberative participation is facilitated, rather than foreclosed, by the referendum is critical. But passing from procedural considerations to substantive ones, what are the criteria by which we may assess the democratic legitimacy of constitutional amendments themselves? Again, here, I turn to recent scholarship on this question.
Yaniv Roznai’s new book Unconstitutional Constitutional Amendments is an excellent starting point. In the book, Roznai considers the limitations placed on the constitutional amendment power in democratic orders and interrogates the circumstances under which amendments may be deemed unconstitutional. In many circumstances, constitutions contain explicit clauses that set particular provisions apart as unamendable or place specific procedural limitations on the amendment power. In other cases, there are “implied limitations…imposed on amendment powers in order to preserve the constitution’s identity.” The theory underlying both kinds of limitations is that a constitution is an expression of the original primary constituent power that brings into existence a secondary constituent power that is explicitly or implicitly limited and “cannot modify the basic pillars underpinning its constitutional authority so as to change the constitution’s identity.” The theory also addresses the judicial enforcement of unamendability, arguing that under certain circumstances constitutional courts may properly review the validity of constitutional amendments by reference to unamendable provisions, other explicit (often procedural) limitations on secondary constituent power or conflicts generated between constitutional amendments.
Of course, there are limitations to the theory of constitutional unamendability. In a recent article, Roznai addresses these when examining efforts to entrench secularism in constitutions. Here Roznai acknowledges that the sustained entrenchment of any constitutional principle depends on the general acceptance of the values it reflects. This acceptance, in turn, is the product of “a complicated deliberative process that can establish political consensus.”  The democratic validity of constitutional entrenchment depends on the exercise of the original constituent power of the people to establish and entrench their normative constitutional identity. But if that identity should change and the values originally entrenched no longer command consensus, that same original constituent power may be invoked to renegotiate those values explicitly or implicitly.
Yet, in an age of authoritarian populism such renegotiation carries significant risks. Invoking the primary constituent power of the people is a particularly effective mechanism for charismatic leaders to impose authoritarian constitutions. The winner-takes-all character of constitutional amendment (and entrenchment) is especially appealing to populists who seek to translate simple majorities into durable control. Does the theory of constitutional unamendability hold any promise for staving off constitutional transformation by charismatic populists? As David Landau has shown, the tools of constitutional amendment can be used to erode democratic order with relative ease. Kim Scheppele recently argued that we are witnessing the emergence of a new kind of autocrat, seizing and maintaining power using armies of lawyers to harness majoritarianism in the service of constitutional revolution. Recognizing the vulnerability of the amendment process to anti-democratic abuse, scholars have argued for a “constitutional escalator” of procedural protections in which fundamental changes to the constitutional order would be subject to heightened amendment requirements. These could include supermajority rules, multiple rounds of voting or time delays before the adoption of amendments. Unfortunately, such procedural protections may not pose a sufficient barrier to constitutional abuse. What happens when a party that secures a simple majority is able to use election laws to transform its electoral victory into a parliamentary supermajority? What if the electoral majority becomes durable, with the party repeatedly winning apparent mandates that are the product of a distorted electoral playing field, gerrymandering or even the outright repression of dissent? What if the party, under conditions of deep political polarization, uses that durable majority to impose its preferred constitutional interpretation through repeated rounds of referenda? These scenarios are not merely hypothetical; they will be familiar to many scholars studying the contemporary politics of populism. Under such conditions none of the procedural protections of a constitutional escalator are likely to hold abusive amendments at bay. At what point does the invocation of the majority’s constituent prerogatives become a threat to democracy itself?
As many have recognized, Turkey has clearly come to this point. The 2017 constitutional referendum reflected a deep democratic deficit procedurally and substantively and may soon result in the definitive suspension of Turkey’s EU accession talks. Indeed, the constitutional amendments that were put to a vote a little over two months ago constituted less of a renegotiation of constitutional identity than a break with the democratic character of the Republic, as Ilayda Güneş has shown. Setting aside the procedural irregularities by which these amendments were adopted, is there a substantive basis for ruling the content of the amendments out of bounds? After all, the Turkish constitution is well known for its unamendable provisions. Returning to Roznai’s theory, the referendum did not directly amend Article 2 of the Turkish Constitution, which entrenches the characteristics of the Republic, including its democratic and secular constitutional identity. Rather, by amending other provisions of the Constitution the referendum transformed the country’s political order from a parliamentary system to what the governing AK Party describes as an executive presidency. Regular elections will continue under the amended constitution, but the way in which power is concentrated in the executive gives it de facto control over both the legislative and judicial branches, undermining the separation of powers and basic democratic checks on government. This indirect abrogation of the entrenched principle of democracy in Article 2 may not be formally sufficient to render the amendments unconstitutional on Roznai’s account. In assessing the Turkish Constitutional Court’s decision in 2008 to overturn earlier amendments on the grounds that they indirectly abrogated the entrenched principle of secularism (also contained in Article 2), Roznai finds fault with the TCC’s reasoning. In any event, the TCC of 2017 bears little resemblance to the Court accused of judicial activism in 2008, as Bertil Emrah Oder has shown. The extent of executive control over the Turkish courts today rules out the prospect of judicial enforcement of unamendability.
In the end, mechanisms of constitutional entrenchment and unamendability cannot in themselves guard against populist constitutional transformation. Constitutional permanence will inevitably be bounded under any theory of democratic sovereignty. In this sense, the illegitimacy of the 2017 Turkish constitutional referendum is better assessed by reference to democratic theory than an inquiry into the scope of proper amendment powers. The conditions under which the primary constituent power is invoked should be the determinant of legitimacy or its absence. To speak of convening a constituent power under conditions in which political opponents are excluded from deliberation, rights of speech and assembly are not recognized, and the independence of the courts, media and civil society are systematically abrogated is to exit the realm of democratic constitutionalism. Under such conditions, neither procedural safeguards nor entrenched principles can ensure the legitimacy of amendments. If the political order forecloses meaningful inclusion, participation and deliberation through majoritarian invocations of the national will, the prerequisites for political contestation and consensus are absent. Theorizing the background conditions under which the constituent power may be invoked also has the benefit of denying latter-day autocrats the legitimacy they seek in the formal trappings of constitutionalism. Under conditions of repression they may secure a majority to endorse their preferences, but they cannot summon the constituent power.
Suggested citation: Aslı Bâli, Constitutional Amendments in an Age of Populism, Int’l J. Const. L. Blog, Jul. 5, 2017, at: http://www.iconnectblog.com/2017/06/constitutional-amendments-in-an-age-of-populism-i-connect-column/
 Yaniv Roznai, Unconstitutional Constitutional Amendments (OUP, 2017), at 11.
 Yaniv Roznai, Negotiating the Eternal: The Paradox of Entrenching Secularism in Constitutions, 2017 Mich. St. L. Rev. 253, at 331.
 Kim Scheppele, “Autocratic Legalism,” presented at the University of Chicago Law Review Symposium, May 13, 2017.
 For Roznai’s overview of this literature, see Unconstitutional Constitutional Amendments, at 164-68.
 Roznai, Unconstitutional Constitutional Amendments, at 200-201.