Book Review on Yaniv Roznai, Unconstitutional Constitutional Amendments. The Limits of Amendment Powers, Oxford University Press, Oxford, 2017. (original) (raw)
Related papers
The Limits of Amendment Powers
ICL Journal
The issue of unconstitutional constitutional amendments encompasses several major topics of constitutional law and legal theory, such as the relationship between constituent and constituted powers; the scope and limits of the amending power (or competence), as well as the role of constitutional adjudication in these processes. Yaniv Roznai's book will certainly foster scholarly debate on constitutional identity and constitutional change, as well as the role of constitutional courts in the enforcement of limits to the amending power. Overall, the text is interesting, well-written and enjoyable for the reader. The reasoning is divided into three main blocks and I will construe my review according to this threefold partition, delving into the topic progressively more in detail, as my expertise concerns, to a greater extent, the jurisprudence regarding constitutional amendments from a comparative perspective. I will draft some remarks on each part of the book and propose general observations on the core concepts and questions. Finally, I will link and contrast Roznai's arguments to European scholarship on comparative methodology and specifically to my own work concerning constitutional adjudication on constitutional amendments published since 2011. 1 I. The core concept of the book being 'unamendability', the author starts the research with the examination of this phenomenon, both theoretically and in practice, from a comprehensive comparative perspective. He adopts a reasoned classification based on explicit, implicit and supra-constitutional limits to the amending power, spanning different jurisdictions and interpretations. First, he analyzes the case of eternity clauses explicitly included in the constitutions
Unconstitutional constitutional amendments: the limits of amending power - BOOK REVIEW
2018
This volume by Yaniv Roznai has been received by the constitutional scholars as a decisive contribution to understand how the limits of amendment powers work in democratic constitutions. Studying constitutional amendments is clearly important because their interpretation and implementation allow the constitution to be opened for dialogue with the present, to avoid its obsolescence and disconnection with reality. However, what is even more fascinating is when the research is oriented to the analysis of the constrained imposed to the amending power, as this issue involves the discussion of the freedom that people have to reconfigure themselves as a political society: past commitments vs. present freedom. The book Unconstitutional Constitutional Amendments: The Limits of Amending Powers offers a great opportunity to better understand and frame the debate around this constitutional issue
The Foundations and Traditions of Constitutional Amendment 23-49 (Richard Albert, Xenophon Contiades and Alkmene Fotiado eds., Hart Publishing, 2017)
The theory of unamendability identifies a simple yet fundamental distinction between primary constituent (constitution-making) power and secondary constituent (constitution-amending) power. The latter is limited by unamendability and the former – perceived as the people's democratic constitution-making power – is unlimited by unamendability. This article develops the distinction by supplementing it with a further one, between various shades of secondary constituent powers along a 'spectrum'; a theoretical construct that links constitutional amendment procedures and limitations which ought to be imposed upon constitutional amendment powers. According to this spectrum theory, constitutional systems are polymorphic: the more similar the democratic characteristics of the amendment powers are to those of the primary constituent power, the less it should be bound by limitations; and vice versa: the closer it is to a regular legislative power, the more it should be fully bound by limitations. This examination is an important step towards a theory of unamendability.
Unconstitutional Constitutional Amendments: The Limits of Amendment Powers
2018
Through a series of judgments, the Colombian Constitutional Court has developed the so-called constitutional replacement doctrine. This doctrine aims to justify the power of the Court to review the content of constitutional amendments despite the fact that the Constitution only grants the Court the power to review constitutional amendments exclusively on procedural grounds. This article aims to explain and assess the constitutional replacement doctrine. It contends that the justification provided by the Court is not able to overcome the democratic challenge that can be raised against the doctrine. Nonetheless, this article claims that the doctrine is justified within the context of hyper-presidential political systems such as that of Colombia. In support of this claim, it offers an alternative justification by means of a conceptual and a normative argument, and shows that they form the basis for an appropriate theory concerning the meaning of "constitutional replacement".
TOWARDS A THEORY OF UNAMENDABILITY
This article stems from a single puzzle: how can constitutional amendments be unconstitutional? Adopting a combination of theoretical and comparative enquiries, this article focuses 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 constitutional amendment powers. The article constructs a general theory of unamendability, which explains the nature and scope of amendment powers. 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. The theory of unamendability aims to clarify the puzzle of unconstitutional constitutional amendments.
The Theory and Practice of ‘Supra-Constitutional’ Limits on Constitutional Amendments
62(3) INTERNATIONAL & COMPARATIVE LAW QUARTERLY (ICLQ) 557-597 (2013)
This article examines whether there are any limitations on constitutional amendment powers that are external to the constitutional system and above it-'supra-constitutional' limits. It considers the theory and practice of the relationship between natural law, international law or other supranational law, and domestic constitutional law in a comparative prism. After considering the alleged supremacy of supranational law over constitutional amendments, the author explores the problem of the relationship between the different legal orders in the external/internal juridical spheres, and the important potential and actual role of national courts in 'domesticating' supranational law and enforcing its supremacy. It is claimed that despite the growing influence of supranational law, state practice demonstrates that constitutional law is still generally superior to international law, and even when the normative hierarchical superiority of supranational law is recognized within the domestic legal order, this supremacy derives not from supranational law as a separate legal order, but rather from the constitution itself. Therefore, it is claimed that existing practice regarding arguments of 'supra-constitutional' limitations are better described by explicit or implicit limitations within the constitution itself, through which supranational standards can be infused to serve as valid limitations on constitutional amendment powers.
Unconstitutional ConstitutionalAmendments: Comparative considerations on the recentcase law
DPCE online, 2022
Comparative considerations on the recent case law This contribution examines the Doctrine of the Basic Structure in its most recent development by the High Court of Kenya, and it compares this judicial theorization with the Implicit Limitation Doctrine elaborated by the Italian Constitutional Court. This comparison focuses on the concept of constituent power in order to understand whether theories of unamendability of constitutional texts-though called with different definition-commonly rest on the necessity to preserve the constitutional identity of a given legal order. The article also discusses the rationale behind the (unwritten) limits, questioning over the necessity to adopt eternity clauses in constitutional texts.
Constitutional amendment raises a number of complex legal issues related to how it can legally help to protect constitutional democracy. Those issues will receive a different answer depending on the concept of the Constitution you depart from. This article will analyze the implications for constitutional amendment of a formal and a material concept of the Constitution, out of the many concepts of the Constitution that are available. After a critical analysis of both concepts, an alternative formal-functional approach will be proposed. This last concept of the Constitution will be conceived as the better way of assessing in modern fully differentiated legal systems the theoretical implications of constitutional amendment, regarding the legally non-existing difference between constituent power and amending power, the contingency of the substantial limitations upon the amending power, the derogatory consequences of constitutional polymorphism, as well as the need of an only ex ante, but not ex post, judicial review of the constitutional amending procedure.