Unconstitutional Constitutional Amendments: A Study of the Nature

363 Pages·2014·2.45 MB·English

by  Jackson Bianca

The London School of Economics and Political Science

Unconstitutional Constitutional Amendments: A
Study of the Nature and Limits of Constitutional
Amendment Powers

Yaniv Roznai

A thesis submitted to the Department of Law of the London School of
Economics for the degree of Doctor of Philosophy.
London, February 2014

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DECLARATION

I certify that the thesis I have presented for examination for the PhD degree of the
London School of Economics and Political Science is solely my own work other than
where I have clearly indicated that it is the work of others.
The copyright of this thesis rests with the author. Quotation from it is permitted,
provided that full acknowledgement is made. This thesis may not be reproduced without
my prior written consent.
I warrant that this authorisation does not, to the best of my belief, infringe the rights of
any third party.
I declare that my thesis consists of 98,746 words.
I can confirm that earlier versions or parts of certain sections (Ch. 1, sec.I; Ch. 2, sec. II;
Ch.3; Ch. 4, sec. I; Ch.7, sec. IIA.B, IIIB; Ch. 8, sec. IIIB) were previously published in
‘Legisprudence Limitations on Constitutional Amendments? Reflections on the Czech
Constitutional Court’s Declaration of Unconstitutional Constitutional Act’, 8(1) Vienna
Journal on International Constitutional Law (2014), 29-57; ‘Unconstitutional
Constitutional Amendments – The Migration and Success of a Constitutional Idea’, 61(3)
American Journal of Comparative Law (2013), 657-719; ‘The Migration of the Indian
Basic Structure Doctrine’, in Judicial Activism in India – A Festschrift in Honour of
Justice V. R. Krishna Iyer (Malik Lokendra ed., Universal Law Publishing Co., 2012),
240-262; ‘The Theory and Practice of ‘Supra-Constitutional’ Limits on Constitutional
Amendments’, 62(3) International & Comparative Law Quarterly (2013), 557-597; ‘Book
Review – Dawn Oliver and Carlo Fusaro (eds), How Constitutions Change: A
Comparative Study’, 75(5) Modern Law Review (2012) 945–950; ‘An Unconstitutional
Constitutional Amendment - The Turkish Perspective: A Comment on the Turkish
Constitutional Court’s Headscarf Decision’, 10(1) International Journal of Constitutional
Law (2012), 175-207 (with Serkan Yolcu); ‘Article Review, Unconstitutional
Constitutional Amendments in the Case Study of Colombia’, ICONnect Blog (October
17, 2013).
I can confirm that my thesis was copy edited for conventions of language, spelling and
grammar by Bianca Jackson.
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ACKNOWLEDGMENTS

This work traveled an itinerant path to submission, with different sections written in
London, Tel Aviv, and New Jersey. Along the way I have benefited from the comments,
proposals, and criticism of many colleagues, whom I gratefully acknowledge here.
First, and foremost, I wish to thank my supervisors Martin Loughlin and Thomas Poole
who were my lighthouses, guiding me and advising me through this journey (always
wisely!). They were tremendously devoted and supportive, more than I could have ever
imagined. I also owe many thanks to my upgrade examiners, Grégoire Webber and
Michael Wilkinson, who tested my thinking and arguments, making them much clearer.
Also, at the LSE, I wish to thank my doctoral friends Aleks Bojovic, Sinéad Agnew,
Dean Knight, Magen Pearson, Sally-Anne Way, Paraskevi Boukli, and Hedi Viterbo, as
well as members of the academic staff – Devika Hovell, Jo Murkens, Jan Komárek, Jacco
Bomhoff, Mara Malagodi, Linda Mulcahy and the Doctoral Programme Administrator –
Rachel Yarham. Their advice and assistance along the way is more than appreciated.
LAPA at Princeton University has been a terrific place to research as a visiting student
research collaborator. I thank Kim Lane Scheppele and Leslie Gerwin for their
generosity, support, and discussions. It is also where I benefited from useful
deliberations with Alexander Somek, Gábor Halmai, Lisa Miller and Lawrence Sager, all
of whom I owe my gratitude.
In the broader academic world, this work has benefited from the assistance, remarks, and
proposals of many people (too many to mention all), and in particular Adam Shinar,
Aharon Barak, Alon Harel, Amnon Rubinstein, Avinash Govindjee, Carlos Bernal-
Pulido, Claude Klein, David Landau, Dorit Rubinstein Reiss, Elisenda Casanas Adam,
Hillel Sommer, Ittai Bar-Siman-Tov, Joel Colón-Ríos, Liav Orgad, Michael Dorf, Michael
Freitas Mohallem, Moran Kendelstein-Heina, Moshe Cohen-Eliya, Nathan Brown, Nir
Yamin, Ozan Varol, Radim Dragomaca, Richard Albert, Rivka Weill, Serkan Yolcu, Silvia
Suteu, Suzie Navot, Thomaz Pereira, Vicki Jackson, Virgilio Afonso da Silva, William
Parlett and Yoram Rabin. I thank them all.
Various sections and ideas of this thesis were presented at numerous conferences,
workshops, and colloquiums. I would like to express my gratitude to the hosts and
participants of the Edinburgh Constitutional Law Discussion Group - PhD Dialogue:
‘Exploring the Eternal Constitution: Perspectives on Constitutional Entrenchment’ (The
University of Edinburgh, February 2014); Haifa Faculty of Law Staff Seminar (University
of Haifa, January 2014); Edinburgh Postgraduate Law Conference (The University of
Edinburgh, December 2013); the Law in a Changing Transnational World (Tel Aviv
University, October 2013); the 3rd Annual Workshop on International and Comparative
Law (Washington University, St. Louis, March 2013); LSE 3rd Year PhD Seminar (LSE,
November 2012); the 2013 Law and Society Annual Conference (Boston, May 2013);
Loyola Annual Constitutional Law Colloquium (Loyola Chicago, November 2012); the
2nd American Society of Comparative Law Younger Comparativists Committee
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Conference (Indiana University, April 2013); LSE 2nd Year PHD Workshop (LSE, May
2012); Yale Law School Doctoral Scholarship Conference (Yale, November 2012); Atlas
Agora PhD Workshop (Bar-Ilan University, June 2012); American Society For
Comparative Law Annual Works-in-Progress Workshop (Princeton University, February
2012).
Some ideas and sections previously appeared in the Vienna Journal on International
Constitutional Law; American Journal of Comparative Law; International & Comparative
Law Quarterly; Modern Law Review; International Journal of Constitutional Law; and
the ICONnect blog. I thank the editors and reviewers for any comments and suggestions
that have surely challenged my thinking and enhanced my arguments.
For a generous financial assistance I owe many thanks to the LSE PhD Scholarship and
the Modern Law Review scholarship.
I thank Marjorie Kaufman and Benjamin Rosendahl for translations from German, and
Bianca Jackson for proofreading this thesis.
Last but not least, I wish to thank my family: my parents Zvika and Tali, my wife Avital,
and baby girl Ella. They all gave me the love, support, and energy that enabled me to do
what I like most… this thesis is dedicated to them.

London & Tel Aviv, February 2014

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ABSTRACT

This research project stems from a single puzzle: how can constitutional amendments be
unconstitutional? Adopting a combination of theoretical and comparative enquiries, this
thesis establishes the nature and scope of constitutional amendment powers by focusing
on the question of substantive limitations on the amendment power, looking at both
their prevalence in practice and the conceptual coherence of the very idea of limitations
to amendment powers.
The thesis is composed of three parts. The first part is comparative. It examines
substantive explicit and implicit limitations on constitutional amendment powers through
manifold descriptions of a similar constitutional phenomenon across countries,
demonstrating a comprehensive pattern of a constitutional behaviour. This process is
theory-driven, and the second part of the thesis constructs a general theory of
unamendability, which explains the nature and scope of amendment powers. The third
part explains how judicial review of amendments is to be conceived in light of the theory
of unamendability, and further assesses the possible objections to the theory of
unamendability.
The theory of unamendability identifies and develops a middle ground between
constituent power and pure constituted power, a middle ground that is suggested by the
French literature on ‘derived constituent power’. Undergirding the discussion, therefore,
is a simple yet fundamental distinction between primary constituent (constitution-
making) power and secondary constituent (constitution-amending) power. This
distinction, understood in terms of an act of delegation of powers, enables the
construction of a theory of the limited (explicitly or implicitly) scope of secondary
constituent powers. This distinction is supplemented by a further one, between various
shades of secondary constituent powers along a ‘spectrum’, a theoretical construct that
links amendment procedures to limitations on amendment powers. The theory of
unamendability explicates the limited nature of amendment powers and the practice of
judicial review of amendments, thus clarifying the puzzle of unconstitutional
constitutional amendments.

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TABLE OF CONTENTS

Chapter 1: Introduction
I. The Meaning and Importance of Constitutional Amendments
II. Unconstitutional Constitutional Amendments
III. Research Methodology
IV. An Outline

PART I. LIMITATIONS

Chapter 2: Explicit Limitations
I. Unamendable Provisions
II. Origins and Development
III. Examining Unamendable Provisions
A. Structure
B. Content
C. Characteristics
1. Preservative
2. Transformative
3. Aspirational
4. Conflictual
5. Bricolage
IV. Conclusion

Chapter 3: Implicit Limitations
I. The Genesis of the Theory of Implicit Limitations
II. The Indian ‘Basic Structure Doctrine’
III. The ‘Basic Structure Doctrine’: A Tour d’Horizon
A. Bangladesh: Implicit Limitations
B. Pakistan: Implicit Limitations Without Judicial Enforcement
C. Africa
1. Kenya – Acceptance of the Doctrine
2. South-Africa: Towards Acceptance?
3. Tanzania – One Step Forward, Two Steps Back?
D. South-East Asia
1. South Korea, Japan, and China – Voices from Academia
2. Taiwan and Thailand – Recognition
3. Sri Lanka, Malaysia, and Singapore: Rejection
E. Central and South America
1. Argentina – A Limited Constituent Assembly
2. Belize – Basic Structure Doctrine
3. Colombia – Constitutional Replacement Doctrine
4. Peru – Principios Juridicos and Valores Democraticos Basicos
IV. Conclusion

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PART II. TOWARDS A THEORY OF UNAMENDABILITY

Chapter 4: The Nature of Amendment Powers
I. Constituent Power and Constituted Power
II. The Amendment Power as Sui Generis
III. The Secondary Constituent Power
A. The Distinction Between ‘Original’ and ‘Derived’ Constituent
Powers
B. The Formal Theory
C. The Substantive Theory
D. Integration: A Theory of Delegation
E. Terminological clarifications
1. Primary and Secondary Constituent Powers
2. Power and Authority
IV. Conclusion

Chapter 5: The Scope of Amedment Powers
I. Explicit Limits
A. The Validity of Unamendable Provisions
B. An Unamendable Amendment?
C. Amending Unamendable Provisions
II. Implicit Limits
A. Foundational Structuralism
B. Hierarchy of Constitutional Values
C. Constitutional Identity
D. Textualism
III. Conclusion

Chapter 6: The Spectrum of Amendment Powers
I. The Re-emergence of Primary Constituent Power
A. Unamendability and Primary Constituent Power
B. Conceptions of Primary Constituent Power
1. Immanent Conception
2. Transcendental Conception
3. Primary Constituent Power and Demcoracy
II. The Constitutionalisation of Primary Constituent Power
A. The Fallacy of Prescribed Constitution-Making Procedures
B. We The ‘Limited’ People?
III. The Spectrum of Amendment Powers
A. Strong and Weak Constitutional Amendment Powers
B. Linking Amendment Procedures and Unamendability
IV. Conclusion

PART III. IMPLICATIONS

Chapter 7: Judicial Review of Constitutional Amendments
I. The Rationales Behind Judicial Review of Constitutional Amendments
A. Separation of Powers
B. The Essence of Judicial Duty
C. The Rule of the Constitution
D. The Supremacy of the Constitution
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E. Political Process Failure
II. Legitimacy of Judicial Review of Constitutional Amendments
A. Authority to Review Constitutional Amendments
B. Existence or Absence of Unamendable Provisions
C. Different Procedures for Constitutional Amendments
III. Exercising Judicial Review of Constitutional Amendments
A. Interpretation of Constitutional Amendments and of
Unamendable Principles
1. Identification of Unamendable Principles or Rules
2. Developing a Theory of Unamendable Principles
3. Identifying the Prohibition
4. Interpreting the Constitutional Amendment
B. Standard of Review
1. Minimal Effect Standard
2. Disproportionate Violation Standard
3. Fundamental Abandonment Standard
C. Judicial Restraint
IV. Conclusion

Chapter 8: Assessing Objections to Unamendability
I. General Objections to Unamendability
A. The ‘Dead Hand’ Objection
B. The Revolutionary Means Objection
II. Objections to Implicit Limitations
A. The Expressio Unius est Exclusio Alterius Objection
B. Reply: Reductio ad Absurdum
III. Objections to Judicial Review of Constitutional Amendments
A. The Logical Subordination Objection
B. The Undemocratic Objection
C. The Enhancing Judiciary’s Power Objection
IV. Conclusion

Chapter 9: Conclusion
I. A Theory of Unamendability
II. Ramifications for Future Research
III. Solving the Paradox

Appendix: Explicit Substantive Limitations on Constitutioinal Amendments

Bibliography
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CHAPTER 1: INTRODUCTION

I. THE MEANING AND IMPORTANCE OF CONSTITUTIONAL AMENDMENTS
This thesis concerns the nature and scope of the power to amend constitutions.
‘Constitution’, in this thesis, is used to denote the narrow sense of the term, i.e. the
cluster of supreme principles and rules, typically set in a written legal document (or a set
of such documents), which establish and regulate the state’s basic institutional
arrangements and practices and express the nation’s most enduring values.1 Not every
state that has a constitution (in that sense) is a constitutional state. Some constitutions are
façade/sham constitutions, in that they exist for ‘cosmetic’ purposes only and have no
effect in reality. Others are in line with the political reality but do not impose binding
rules upon it; on the contrary, they reinforce governmental power.2 Thus, this thesis
focuses on constitutional systems in the modern context of ‘constitutionalism’. 3
Constitutionalism is nowadays commonly identified by certain conditions, such as: the
recognition of the people as the source of all governmental authority; the constitution is
supreme law (in the sense that it carries the highest normative status within the legal
hierarchy); the constitution regulates and limits the power of government; demanding
adherence for the rule of law and respect for fundamental rights.4 It also focuses on
national constitutions rather than state constitutions within a Federal system due to the
important theoretical distinctions between the two.5
Constitutions change with time. Such change can take place in various ways. It
can occur outside of constitutional law, in the social sphere, for instance ‘by gradually
shifting the rank and importance of constitutional factors … and norms’.6 Constitutions
may also be modified according to a procedure stipulated within them. This is the
constitutional amendment procedure, by which textual changes to a constitution may
occur.7 By the term constitutional amendment,8 I refer to formal constitutional amendments

1 For wide and narrow senses of constitutions, see Perry (2001, 103); Tully (2002, 204-5); Elkins, Ginsberg
and Melton (2009, 38-51).
2 See generally Loewenstein (1972, 174); Sartori (1962, 853); Murphy (1993A, 8-9); Law and Versteeg
(2013, 863).
3 McIlwain (1975, 132).
4 See, for example, Henkin (1994, 40-42); Grimm (2010B, 9).
5 See Saunders (2010-2011, 853).
6 Smend (2002, 248).
7 Schwartzberg (2009, 5).
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enacted through the amendment procedure and not to any constitutional changes.9 Of course,
important constitutional changes may also take place outside of the formal amendment
process,10 for instance, through judicial interpretations or practice.11 Some have claimed,
for example, that certain judicial interpretations of the U.S. Constitution are better
viewed as amendments.12 Indeed, a modification of a constitutional text’s meaning may
often carry a greater effect than its formal modifications. 13 Nonetheless, formal
constitutional amendments remain an essential means of constitutional change.14 For
some, such as Georg Jellinek, the issue of constitutional amendments is less interesting
than that of transformation, which occurs outside of the constitutional text.15 However,
as this thesis demonstrates, constitutional amendments raise imperative questions about
constitutional theory and are far from being tedious.
The modern phenomenon of constitutionalism emerged in the late years of the
eighteenth century, first in the North American colonies and then in Europe.16 In North
America, the first state constitution – of Virginia – did not include any amendment
provision. However, between the years 1776 and 1783, great advances occurred in
constitutional design as state constitutions provided special amendment procedures.17
Indeed, soon after the Declaration of Independence, six of the first thirteen constitutions
included amendment provisions.18 At the Federal level, from the commencement of the
1787 Constitutional Convention, it was clear that it would be necessary to include within
the Constitution an amendment provision. The ‘Virginia Plan’, introduced by Edmund
Randolph, contained a provision allowing for amendments ‘whensoever it shall seem
necessary’. When doubts were raised as for the need to include an amendment provision,
George Mason replied that ‘amendments therefore will be necessary, and it will be better
to provide for them, in an easy, regular and Constitutional way than to trust to chance

8 Earlier constitutional literature drew a distinction between major and minor constitutional alterations,
calling the former revisions and the latter amendments. See Willoughby (1921, 128); Lutz (1994, 356). I use
amendments to describe any formal changes to the constitution, whether major or minor.
9 See, for example, Oliver and Fusaro (2011); Contiades (2012).
10 There is a great deal of work regarding constitutional change outside of the formal amendment process.
See mainly the project of Ackerman (1991); Ackerman (1995, 63); Ackerman (2000A).
11 Llewellyn (1934, 1); Strauss (2000-2001), 1457.
12 Coudert (1904, 331); Levinson (1995B, 33).
13 Grimm (2011, 27).
14 Vermeaule (2006, 229).
15 Jellinek (2002, 54).
16 Henkin (1988-1989, 1023).
17 Loughlin (2010, 280-81).
18 Delaware Const. (1776), Pennsylvania Const. (1776), Maryland Const. (1776), Georgia Const. (1777),
Vermont Const. (1777), and Massachusetts Const. (1780). See Martig (1937, 1254).
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