[Editor’s Note: This is Part IV in our Externado symposium on “Contemporary Discussions in Constitutional Law.” The Introduction to the symposium is available here, Part I is available here, Part II is available here, and Part III is available here.]
—Richard Albert, William Stamps Farish Professor of Law, The University of Texas at Austin
The most fascinating question in the study of modern constitutional change raises something of a paradox: can a constitutional amendment be unconstitutional? We once treated the formal rules of change codified in constitutions as entrenching the necessary and sufficient procedures for amendments but we know this is no longer true as a descriptive reality. Today we can be no more certain that an amendment shall be valid when it satisfies the procedural strictures set out in the formal amendment rules than we can be certain that a law passed by a legislature is constitutional.
Courts around the world—from Bangladesh to Belize, India to Peru, Colombia to Taiwan—have either asserted or exercised the power to invalidate a constitutional amendment on substantive grounds. Courts have drawn from textually-entrenched rules and extra-constitutional norms to declare that procedurally-perfect amendments are nonetheless substantively void. Scholars have in recent years taken a keen interest in this phenomenon, producing a burgeoning literature in public law seeking both to explain and justify the judicial doctrine of unconstitutional constitutional amendment. The dominant view in the field is overwhelmingly favorably inclined toward the idea that courts should have the power to invalidate a procedurally-perfect amendment they deem unconstitutional, even in cases where the codified constitution does not entrench a formally unamendable rule.
There are relatively few exceptions to the global chorus of voices in support of the extraordinary judicial power to invalidate constitutional amendments. The dearth of contrary views reflects the normalization of the phenomenon Ran Hirschl has identified as the “judicialization of mega-politics,” a now-common phrase referring to the most important matters of political significance that constitute, define and divide polities—and that are now often adjudicated by courts. National courts today decide a host of decidedly political questions: the winner of presidential elections, the legitimacy of political parties, and the self-determination of a people. Against this backdrop, invalidating a constitutional amendment is just par for the course.
But we should not take the increasing prevalence of the doctrine of unconstitutional constitutional amendment as evidence of its appropriateness for all constitutional states. It may well be that the doctrine fits in a given constitutional tradition and should be incorporated into its practices of adjudication. But this is a choice for a state and its domestic actors to make according to their own norms of governance. The politics of constitutionalism must remain localized in their particularized social and political circumstances. Otherwise when combined with the enormous pressure on states in our day to conform to what may appear to be generally accepted standards of global constitutionalism, the trend toward adopting the doctrine of unconstitutional constitutional amendment can overwhelm the capacity of a state to evaluate whether the doctrine is right for itself—in light of its own juridical history, political context and constitutional traditions—without feeling compelled to adopt this practice as though it were a necessary feature of constitutionalism.
The doctrine of unconstitutional constitutional amendment is most certainly not a necessary feature of modern constitutionalism, nor even of the narrower idea of modern liberal democracy. It is important for all constitutional actors to know that there is another answer to the question whether an amendment can be unconstitutional. The popular answer in the present moment is emphatically yes in a number of important constitutional states but constitutional designers and constitutional adjudicators as well as constitutional amenders should know that it is an altogether reasonable choice to deny the possibility of an unconstitutional constitutional amendment.
In a forthcoming paper co-authored with Malkhaz Nakashidze (Batumi) and Tarik Olcay (Glascow), we explore three jurisdictions in particular—France, Georgia and Turkey—whose constitutions and attendant constitutional practices have in their own way expressly rejected the doctrine of a substantively unconstitutional amendment. Their shared rejection of the doctrine reflects what we call formalist resistance to the doctrine of unconstitutional constitutional amendment.
While Georgia demonstrates a model that we call “ultra-formalism,” Turkey adopts what is designed to be but has not always been applied as a model of “proceduralist review.” In France, we see a different formalist approach altogether: the triumph of popular sovereignty. As we show, none of these strategies is optimal but they do reveal some available alternatives to the doctrine of unconstitutional constitutional amendment.
We have three purposes in this paper. We seek first to demonstrate that the doctrine has not yet matured into a global norm of constitutionalism. We seek also to explain how a jurisdiction that expressly rejects the idea of an unconstitutional constitutional amendment operates in the face of an amendment that would otherwise be invalidated as unconstitutional in a jurisdiction that has adopted the doctrine. We finally seek to evaluate what is gained and lost in a constitutional state that rejects the doctrine of unconstitutional constitutional amendment.
We find that there are both democracy-enhancing and democracy-weakening features that follow from the choice to deny the doctrine outright. Our larger purpose is inherent in the project itself: to diversify our thinking about what risks becoming seen as a necessary feature of constitutionalism but that design and practice show plainly is not. We therefore speak also to constitutional designers seeking ways to structure the rules of constitutional change so as to foreclose the doctrine of unconstitutional constitutional amendment.
We welcome comments on our draft, and we thank the Externado University of Colombia for hosting this symposium in public law.
Suggested Citation: Richard Albert, I-CONnect Symposium–Contemporary Discussions in Constitutional Law–Part IV: The Formalist Resistance to Unconstitutional Constitutional Amendments, Int’l J. Const. L. Blog, Nov. 3, 2018, at: http://www.iconnectblog.com/2018/11/i-connect-symposium-contemporary-discussions-in-constitutional-law-part-iv-the-formalist-resistance-to-unconstitutional-constitutional-amendments
 See Yaniv Roznai, Unconstitutional Constitutional Amendments: The Limits of Amendment Powers 47-70 (2017).
 See, e.g., Joel Colón-Ríos, Weak Constitutionalism: Democratic Legitimacy and the Question of Constituent Power; Richard Albert, Constitutional Amendment and Dismemberment, 43 Yale J. Int’l L. 1 (2018); 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); John R. Vile, Limitations on the Constitutional Amending Process, 2 Const. Comment. 373 (1985).
 Ran Hirschl, The Judicialization of Mega-Politics and the Rise of Political Courts, 11 Ann. Rev. Pol. Sci. 93, 94 (2008).
 There is a related literature on the question whether courts should have the power to invalidate amendments that may be “constitutional” but that undermine “constitutionalism.” This literature is deeply flawed because it is rooted in an elision: scholars in this camp take “constitutionalism” to mean “liberal constitutionalism,” though of course “liberal constitutionalism” is only one variety of constitutionalism. See Mark Tushnet, Varieties of Constitutionalism, 14 Int’l J. Const. L. 1 (2016).