Unconstitutional Constitutional Amendments: The Limits of Amendment Powers

369 Pages·2017·2.32 MB·English

by  Yaniv Roznai

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OXFORD CONSTITUTIONAL THEORY
Series Editors:
Martin Loughlin, John P. McCormick, and Neil Walker
Unconstitutional Constitutional Amendments
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OXFORD CONSTITUTIONAL THEORY
Series Editors:
Martin Loughlin, John P. McCormick, and Neil Walker
Oxford Constitutional Theory has rapidly established itself as the primary point
of reference for theoretical reflections on the growing interest in constitu-
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Constitutional and Political Theory The Structure of Pluralism
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The Constitutional State
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Unconstitutional
Constitutional Amendments
The Limits of Amendment Powers
Yaniv Roznai
••
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© Yaniv Roznai 2017
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For Ella and Eitan
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Acknowledgements
This book began as my PhD dissertation at the LSE. Therefore, first and foremost,
I wish to express my frankest appreciation to my supervisors, Martin Loughlin
and Thomas Poole, who always guided and advised me wisely throughout this
journey. They were both tremendously devoted and supportive in more ways
than I could have ever imagined. Also, I owe many thanks to my LSE upgrade
examiners, Grégoire Webber and Michael Wilkinson, who tested my thinking
and made it much clearer. As well, I wish to thank my doctoral colleagues and
the academic staff whose advice and assistance along the way is greatly valued.
Special thanks to my thesis examiners, Neil Walker and Conor Gearty, for their
rigorous and elaborated feedback, which surely improved this book.
During my doctoral studies, I had the pleasure to be a visiting researcher at
LAPA, Princeton. I thank Kim Lane Scheppele for her supervision, generosity,
and support both during and after my time at Princeton. It is also here that
I benefited from useful deliberations with Alexander Somek and Gábor Halmai,
to whom I owe my gratitude.
After my doctoral studies, I undertook post- doctoral fellowships at the NYU
Hauser Global Law School and the Minerva Center for the Rule of Law under
Extreme Conditions at the University of Haifa. At NYU, I was sponsored by
Samuel Issacharoff, and I thank him, the staff, and my fellow colleagues for
their advice and comments. While in New York I also benefited from consulta-
tions with Andreas Kalyvas and Michel Rosenfeld, whom I thank for their time
and useful remarks. At the University of Haifa, I presented my ideas on vari-
ous occasions. I would like to thank principal investigators Amnon Reichman,
Deborah Shmueli, Eli Salzberger, and Gad Barzilai, and my post-d oc colleagues.
While in Israel, I also benefited from comments from many people, most nota-
bly Adam Shinar, Aharon Barak, Alon Harel, Amnon Rubinstein, Barak Medina,
Claude Klein, Hillel Sommer, Isaac Herzog, Ittai Bar-S iman- Tov, Liav Orgad,
Moran Kendelstein- Heina, Moshe Cohen- Eliya, Nadiv Mordechay, Nir Yamin,
Ruth Gavison, Sharon Weintal, Suzie Navot, and Yoram Rabin.
In the greater academic world, I am greatly indebted to many scholars—t oo
many to mention all—f or assisting me with materials, comments, and much
more. I am particularly grateful to Carlos Bernal- Pulido, David Landau, Gary
Jacobsohn, Joel Colón-R íos, Mark Tushnet, Ozan Varol, Richard Kay, Silvia
Suteu, and Zoran Oklopcic. Distinct appreciation is due to my colleague and
true friend Richard Albert for invigoratingly engaging with my ideas.
Various sections of this book were presented at conferences, workshops, and col-
loquia. I would like to express my gratitude to the hosts and participants at Bar-I lan
University, the EUI, Florida State University, the IDC, Hebrew University, Humboldt
viii
viii • Acknowledgements
University, Indiana University, Koç University, Boston College, the LSE, NUI Galway,
NYU, Ono Academic College, Princeton University, Tel Aviv University, the College
of Management Academic Studies, the University of Edinburgh, Trinity College
Dublin, Tulane University, UC Berkeley, the University of Haifa, the University of
Loyola Chicago, Washington University St. Louis, and Yale University.
I am grateful for the generous financial assistance I received from the LSE
PhD Scholarship, the Modern Law Review Scholarship, NYU Hauser Global
Law School’s Post- Doctoral Scholarship, the University of Haifa’s Rector’s
Post-D octoral Scholarship, and the Minerva Center for the Rule of Law under
Extreme Conditions’ Post- Doctoral Scholarship.
I thank Marjorie Kaufman and Benjamin Rosendahl for translations from
German, and Bianca Jackson, Risa Vandersluis, and Stephanie Raker for assist-
ing with editing.
I also wish to acknowledge my appreciation to the editors and publishers of
the following publications for granting permission to incorporate these works
or sections thereof into the book:
• ‘Unamendability and the Genetic Code of the Constitution’ (summer
2015) 27(2) European Review of Public Law 775–8 25.
• ‘Legisprudence Limitations on Constitutional Amendments? Reflections on the
Czech Constitutional Court’s Declaration of Unconstitutional Constitutional
Act’ (2014) 8(1) Vienna Journal on International Constitutional Law 29–5 7.
• ‘Unconstitutional Constitutional Amendments—T he Migration and Success
of a Constitutional Idea’ (2013) 61(3) American Journal of Comparative Law
657– 719.
• ‘The Theory and Practice of “Supra-C onstitutional” Limits on Constitutional
Amendments’ (2013) 62(3) International & Comparative Law Quarterly 557–9 7.
I wish to thank the European Group of Public Law, the Scientific Council of
the European Public Law Organization, for awarding me their 2014 Thesis Prize.
This has been a great honour that has encouraged me to publish this book.
I wish to thank the series editors at Oxford University Press, the external
reviewers, and the editorial staff for their advice and assistance throughout
the way.
I would like to thank the Ackland Art Museum, University of North Carolina
at Chapel Hill, Ackland Fund, for granting me permission to reproduce Richard
Westall, ‘The Sword of Damocles’, 1812 (79.10.1).
For their love and support, I wish to thank, above all, my wonderful fam-
ily: my wife, Avital and my children, Ella and Eitan; my parents, Zvika and Tali;
and my parents- in- law, Tamar and Nir. I owe them more than they can imagine.
I especially wish that Ella and Eitan grow up with as much affection and care
as I have been awarded with and continue to receive. This book is dedicated
to them.
Yaniv Roznai
Tel Aviv, Israel
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Contents
Table of Cases and Decisions  xv
Table of Statutes and other Public Documents  xxiii
A Note on the Cover  xxxiii
Introduction  1
PART I: COMPARATIVE CONSTITUTIONAL
UNAMENDABILITY
1 Explicit Constitutional Unamendability  15
2 Implicit Constitutional Unamendability  39
3 Supra- constitutional Unamendability  71
PART II: TOWARDS A THEORY OF CONSTITUTIONAL
UNAMENDABILITY
4 The Nature of Constitutional Amendment Powers  105
5 The Scope of Constitutional Amendment Powers  135
6 The Spectrum of Constitutional Amendment Powers  158
PART III: ENFORCING CONSTITUTIONAL UNAMENDABILITY 
7 Understanding Judicial Review of Constitutional Amendments  179
8 Exercising Judicial Review of Constitutional Amendments  197
Conclusion  226
Appendix: Explicit Substantive Unamendability in World Constitutions  235
Bibliography  275
Index  317