An unconstitutional constitutional amendment is a concept in
judicial review
Judicial review is a process under which executive, legislative and administrative actions are subject to review by the judiciary. A court with authority for judicial review may invalidate laws, acts and governmental actions that are incompat ...
based on the idea that even a properly passed and properly ratified
constitutional amendment
A constitutional amendment is a modification of the constitution of a polity, organization or other type of entity. Amendments are often interwoven into the relevant sections of an existing constitution, directly altering the text. Conversely, t ...
, specifically one that is not explicitly prohibited by a constitution's text, can nevertheless be
unconstitutional
Constitutionality is said to be the condition of acting in accordance with an applicable constitution; "Webster On Line" the status of a law, a procedure, or an act's accordance with the laws or set forth in the applicable constitution. When l ...
on substantive (as opposed to procedural) grounds—such as due to this amendment conflicting with some constitutional or even extra-constitutional norm, value, and/or principle.
As
Israel
Israel (; he, יִשְׂרָאֵל, ; ar, إِسْرَائِيل, ), officially the State of Israel ( he, מְדִינַת יִשְׂרָאֵל, label=none, translit=Medīnat Yīsrāʾēl; ), is a country in Western Asia. It is situated ...
i legal
academic
An academy (Attic Greek: Ἀκαδήμεια; Koine Greek Ἀκαδημία) is an institution of secondary education, secondary or tertiary education, tertiary higher education, higher learning (and generally also research or honorary membershi ...
2017 book ''Unconstitutional Constitutional Amendments: The Limits of Amendment Powers'' demonstrates, the unconstitutional constitutional amendment doctrine has been adopted by various courts and legal scholars in various countries throughout history.
While this doctrine has generally applied specifically to constitutional amendments, there have been moves and proposals to also apply this doctrine to original parts of a constitution.
Concept
![Prof](https://upload.wikimedia.org/wikipedia/commons/5/5b/Prof._Akhil_Reed_Amar.png)
The idea of an ''unconstitutional constitutional amendment'' has been around for over a century—with it being embraced by former
Michigan Supreme Court
The Michigan Supreme Court is the highest court in the U.S. state of Michigan. It is Michigan's court of last resort and consists of seven justices. The Court is located in the Michigan Hall of Justice at 925 Ottawa Street in Lansing, the state ...
Chief Justice Thomas M. Cooley
Thomas McIntyre Cooley (January 6, 1824 – September 12, 1898) was the 25th Justice and a Chief Justice of the Michigan Supreme Court, between 1864 and 1885. Born in Attica, New York, he was father to Charles Cooley, a distinguished American so ...
in 1893 and US law professor Arthur Machen in 1910 (in Machen's case, in arguing that the
Fifteenth Amendment to the United States Constitution
The Fifteenth Amendment (Amendment XV) to the United States Constitution prohibits the federal government and each state from denying or abridging a citizen's right to vote "on account of race, color, or previous condition of servitude." It was ...
might be unconstitutional). This theory is based on the idea that there is a difference between amending a particular constitution (in other words, the constitution-amending power or the ''secondary constituent power'') and revising it to such an extent that it is essentially a new constitution (in other words, the constitution-making power or the ''primary constituent power'')—with proponents of this idea viewing the former as being acceptable while viewing the latter as being unacceptable (even if the existing constitution doesn't actually explicitly prohibit doing the latter through its amendment process) unless the people actually adopt a new constitution using their constitution-making power.
Thomas M. Cooley insisted that amendments "cannot be revolutionary; they must be harmonious with the body of the instrument".
Elaborating on this point, Cooley argued that "an amendment converting a
democratic republican government into an
aristocracy
Aristocracy (, ) is a form of government that places strength in the hands of a small, privileged ruling class, the aristocracy (class), aristocrats. The term derives from the el, αριστοκρατία (), meaning 'rule of the best'.
At t ...
or a
monarchy
A monarchy is a form of government in which a person, the monarch, is head of state for life or until abdication. The political legitimacy and authority of the monarch may vary from restricted and largely symbolic (constitutional monarchy) ...
would not be an amendment, but rather a
revolution
In political science, a revolution (Latin: ''revolutio'', "a turn around") is a fundamental and relatively sudden change in political power and political organization which occurs when the population revolts against the government, typically due ...
" that would require the creation and adoption of a new constitution even if the text of the existing constitution didn't actually prohibit such an amendment.
In a 1991
law review
A law review or law journal is a scholarly journal or publication that focuses on legal issues. A law review is a type of legal periodical. Law reviews are a source of research, imbedded with analyzed and referenced legal topics; they also pro ...
article
Article often refers to:
* Article (grammar), a grammatical element used to indicate definiteness or indefiniteness
* Article (publishing), a piece of nonfictional prose that is an independent part of a publication
Article may also refer to:
G ...
,
United States
The United States of America (U.S.A. or USA), commonly known as the United States (U.S. or US) or America, is a country primarily located in North America. It consists of 50 states, a federal district, five major unincorporated territorie ...
law professor
A jurist is a person with expert knowledge of law; someone who analyses and comments on law. This person is usually a specialist legal scholar, mostly (but not always) with a formal qualification in law and often a legal practitioner. In the Uni ...
Richard George Wright argues that if a constitutional amendment leaves a constitution in such a state that it is a "smoldering, meaningless wreckage" and extremely internally inconsistent and incoherent, then such an amendment should indeed be declared unconstitutional.
Wright compares this to a scenario of a body rejecting a tissue transplant due to this transplant being extremely incompatible with the body to which it is grafted—thus triggering an
immune response
An immune response is a reaction which occurs within an organism for the purpose of defending against foreign invaders. These invaders include a wide variety of different microorganisms including viruses, bacteria, parasites, and fungi which could ...
on the part of the body.
In Wright's analogy, the constitution is the body and the amendment is a tissue transplant and while both can peacefully coexist separately, they cannot peacefully coexist together.
While Wright rejects the idea that certain specific hypothetical amendments are unconstitutional (such as an amendment that abolishes one or more
US states
In the United States, a state is a constituent political entity, of which there are 50. Bound together in a political union, each state holds governmental jurisdiction over a separate and defined geographic territory where it shares its sover ...
), Wright does agree with
Yale
Yale University is a private research university in New Haven, Connecticut. Established in 1701 as the Collegiate School, it is the third-oldest institution of higher education in the United States and among the most prestigious in the wor ...
law professor
Akhil Amar
Akhil Reed Amar (born September 6, 1958) is an American legal scholar known for his expertise in constitutional law and criminal procedure. He holds the position of Sterling Professor of Law and Political Science at Yale University, and is an adj ...
's view that a hypothetical constitutional amendment that completely abolishes
freedom of speech
Freedom of speech is a principle that supports the freedom of an individual or a community to articulate their opinions and ideas without fear of retaliation, censorship, or legal sanction. The right to freedom of expression has been recogni ...
would be unconstitutional because such an amendment would also undermine many other US constitutional provisions and thus "leave standing only a disjointed, unworkably insufficient, fragmentary constitutional structure."
Such an amendment would not only conflict with the provisions of the US Constitution's
First Amendment
First or 1st is the ordinal form of the number one (#1).
First or 1st may also refer to:
*World record, specifically the first instance of a particular achievement
Arts and media Music
* 1$T, American rapper, singer-songwriter, DJ, and rec ...
—such an override being in fact
not unheard of—but also with an innumerable multitude of other US constitutional provisions.
Wright also agrees with US law professor
Walter F. Murphy
Walter Francis Murphy, Jr. (November 21, 1929 – April 20, 2010) was an American political scientist and writer.
Early life and education
Born in Charleston, South Carolina, Murphy won a Distinguished Service Cross and was awarded a Purple ...
's view that a constitutional amendment that legally enshrines
white supremacy
White supremacy or white supremacism is the belief that white people are superior to those of other races and thus should dominate them. The belief favors the maintenance and defense of any power and privilege held by white people. White su ...
, limits the franchise to whites, requires both US state governments and the US federal governments to
segregate public institutions, and authorizes other legal disabilities that clearly offend and even deny the human dignity of
non-whites
The term "person of color" ( : people of color or persons of color; abbreviated POC) is primarily used to describe any person who is not considered "white". In its current meaning, the term originated in, and is primarily associated with, the U ...
would be unconstitutional because–in spite of such an amendment's compatibility with the pre-
Civil War
A civil war or intrastate war is a war between organized groups within the same state (or country).
The aim of one side may be to take control of the country or a region, to achieve independence for a region, or to change government policies ...
US Constitution–such an amendment "conflicts fundamentally and irreconcilably with virtually all conceptions of the commonly cited constitutional value of equality."
In a 2015 article, Yaniv Roznai argues that the more that the expression of the ''secondary constituent power'' (as in, the constitution-amending power) resembles the expression of a democratic ''primary constituent power'', the less that it should be bound by limitations (whether explicit or implicit), and vice versa–with the less that the ''secondary constituent power'' resembles the ''primary constituent power'' and the more that the ''secondary constituent power'' resembles an ordinary
legislative power
A legislature is an assembly with the authority to make laws for a political entity such as a country or city. They are often contrasted with the executive and judicial powers of government.
Laws enacted by legislatures are usually known as p ...
, the more that it should be bound by limitations (whether explicit or implicit). A variation of this argument was also endorsed in 2013 by Carlos Bernal-Pulido. Meanwhile, in a 2018 review of Yaniv Roznai's 2017 book about unconstitutional constitutional amendments, Joel Colón-Rios argued that the ''unconstitutional constitutional amendment'' doctrine should only apply in jurisdictions where the constitution-making process was indeed both strongly democratic and strongly inclusive–something that Colón-Rios pointed out is not actually true for the processes by which many currently existing constitutions were made and ratified.
In addition, Colón-Rios speculated as to whether the distinction between the ''primary constituent power'' and the ''secondary constituent power'' can actually be sustained ''at all'' in cases where the ''secondary constituent power'' is as
democratic (as in, a genuine expression of the people's will) or even more democratic than the ''primary constituent power'' is–for instance, if an expression of the ''secondary constituent power'' involves the convocation of a democratic and inclusive
constituent assembly
A constituent assembly (also known as a constitutional convention, constitutional congress, or constitutional assembly) is a body assembled for the purpose of drafting or revising a constitution. Members of a constituent assembly may be elected b ...
or
constitutional convention whereas an expression of the ''primary constituent power'' doesn't.
In the same article, Colón-Rios wondered whether jurisdictions with constitutions that lack a ''legal'' mechanism to resurrect the ''primary constituent power'' should categorically reject the ''unconstitutional constitutional amendment'' doctrine since the use and invocation of this doctrine in these jurisdictions would mean that certain constitutional principles there would only be capable of being changed or altered through revolution.
In a 2018 review of Roznai's book,
Adrienne Stone
Adrienne Stone is an Australian legal academic specialising in the areas of constitutional law and constitutional theory, with particular expertise in freedom of expression.
Academic career
As of 2020, Stone is a Redmond Barry Distinguished Pro ...
argues that there is a sound case that an amendment that transforms a
constitution
A constitution is the aggregate of fundamental principles or established precedents that constitute the legal basis of a polity, organisation or other type of Legal entity, entity and commonly determine how that entity is to be governed.
When ...
into some entity other than a constitution–for instance, by eliminating the
rule of law
The rule of law is the political philosophy that all citizens and institutions within a country, state, or community are accountable to the same laws, including lawmakers and leaders. The rule of law is defined in the ''Encyclopedia Britannica ...
–would be unconstitutional.
Otherwise, according to Stone, the concept of a constitution would lack any meaningful sense.
However, Stone is much more critical of Roznai's claim that constitutional changes that alter a constitution's identity while allowing it to remain a constitution–simply a different constitution from what it was when it was first created–are unconstitutional.
After all, Stone argues that a particular constitution's extreme malleability–and thus a particular constitution's rejection of the ''unconstitutional constitutional amendment'' doctrine–can ''itself'' be considered a part of this constitution's identity, thus making it improper for courts to alter it.
Stone also argues that the question of whether a constitutional amendment is indeed unconstitutional should not only be decided based on whether the constitution-amending process was democratic, inclusive, and deliberative, but also on whether the constitution-making process was as democratic, inclusive, and deliberative as the constitution-amending process was.
Stone uses her home country of
Australia
Australia, officially the Commonwealth of Australia, is a Sovereign state, sovereign country comprising the mainland of the Australia (continent), Australian continent, the island of Tasmania, and numerous List of islands of Australia, sma ...
as an example where the constitution-amending process was more democratic and thus a better representation of the people's will than the constitution-making process was since at the time that Australia's constitution was written back in the 1890s,
Australian Aborigines
Aboriginal Australians are the various Indigenous peoples of the Australian mainland and many of its islands, such as Tasmania, Fraser Island, Hinchinbrook Island, the Tiwi Islands, and Groote Eylandt, but excluding the Torres Strait Islands ...
and women were both excluded from the Australian constitution-making process–whereas both of these groups are full participants in any 21st century Australian constitution-amending process.
Stone argues that, in cases where the constitution-amending process is more democratic and inclusive–and thus more legitimate–than the constitution-making process is, it would indeed be permissible to enact even transformational constitutional changes through the constitution-amending process (as opposed to through a new constitution-making process).
National views about this theory
Countries that adopted this theory
Germany
Contemporary Germany arose from the ashes of
World War II
World War II or the Second World War, often abbreviated as WWII or WW2, was a world war that lasted from 1939 to 1945. It involved the vast majority of the world's countries—including all of the great powers—forming two opposin ...
and the
totalitarian
Totalitarianism is a form of government and a political system that prohibits all opposition parties, outlaws individual and group opposition to the state and its claims, and exercises an extremely high if not complete degree of control and regul ...
experience of
Nazism
Nazism ( ; german: Nazismus), the common name in English for National Socialism (german: Nationalsozialismus, ), is the far-right totalitarian political ideology and practices associated with Adolf Hitler and the Nazi Party (NSDAP) in Na ...
. Based on the legacy of the
Weimar Constitution
The Constitution of the German Reich (german: Die Verfassung des Deutschen Reichs), usually known as the Weimar Constitution (''Weimarer Verfassung''), was the constitution that governed Germany during the Weimar Republic era (1919–1933). The c ...
and especially on the correction of its flaws, the Federal Republic of Germany was born in 1949 (as
West Germany
West Germany is the colloquial term used to indicate the Federal Republic of Germany (FRG; german: Bundesrepublik Deutschland , BRD) between its formation on 23 May 1949 and the German reunification through the accession of East Germany on 3 O ...
) and the
Federal Constitutional Court
The Federal Constitutional Court (german: link=no, Bundesverfassungsgericht ; abbreviated: ) is the supreme constitutional court for the Federal Republic of Germany, established by the constitution or Basic Law () of Germany. Since its inc ...
has been active since 1951. The court's jurisdiction is focused on constitutional issues and the compliance of all governmental institutions with the constitution. Both
ordinary law An ordinary law is a normal law, generally distinguished from a constitutional law, organic law, or other similar law. Typically, ordinary laws are subordinate to constitutional and organic laws, and are more easily changed than constitutional or or ...
s and
constitutional law
Constitutional law is a body of law which defines the role, powers, and structure of different entities within a State (polity), state, namely, the executive (government), executive, the parliament or legislature, and the judiciary; as well as th ...
s (and amendments) passed by the Parliament are subject to its
judicial review
Judicial review is a process under which executive, legislative and administrative actions are subject to review by the judiciary. A court with authority for judicial review may invalidate laws, acts and governmental actions that are incompat ...
, since they have to be compatible with the principles of the
Basic Law for the Federal Republic of Germany
The Basic Law for the Federal Republic of Germany (german: Grundgesetz für die Bundesrepublik Deutschland) is the constitution of the Federal Republic of Germany.
The West German Constitution was approved in Bonn on 8 May 1949 and came in ...
defined by the
eternity clause
Eternity, in common parlance, means infinite time that never ends or the quality, condition, or fact of being everlasting or eternal. Classical philosophy, however, defines eternity as what is timeless or exists outside time, whereas sempitern ...
.
Honduras
In 2015, the
Supreme Court of Honduras
The Supreme Court of Honduras ( es, Corte Suprema de Justicia de Honduras; CSJ) is the Supreme Court and Constitutional Court of Honduras. The Supreme Court is the highest judicial authority in Honduras.
Structure, power, and duties
There are ...
declared unconstitutional a part of the original 1982
constitution of Honduras
The Political Constitution of the Republic of Honduras () was approved on 11 January 1982, published on 20 January 1982, amended by the National Congress of Honduras 26 times from 1984 to 2005,Dates of ratification. and 10 interpretations by Co ...
that created a one-term limit for the
president of Honduras
The president of Honduras ( es, Presidente de Honduras) officially known as the President of the Republic of Honduras (Spanish: ''Presidente de la República de Honduras''), is the head of state and head of government of Honduras, and the Comm ...
and also created protective provisions punishing attempts to alter this presidential term limit.
This case was novel in the sense that a part of an original constitution rather than a constitutional amendment was declared unconstitutional.
India
![Supreme Court of India - Retouched](https://upload.wikimedia.org/wikipedia/commons/3/3c/Supreme_Court_of_India_-_Retouched.jpg)
In the 1960s and 1970s, the
Indian Supreme Court
The Supreme Court of India ( IAST: ) is the supreme judicial authority of India and is the highest court of the Republic of India under the constitution. It is the most senior constitutional court, has the final decision in all legal matters ...
articulated the
basic structure doctrine
The basic structure doctrine is a common law legal doctrine that the constitution of a sovereign state has certain characteristics that cannot be erased by its legislature. The doctrine is recognised in India, Bangladesh, Malaysia, Pakistan, and ...
—as in, the idea that a constitutional amendment that violates the basic structure of the
Indian Constitution
The Constitution of India ( IAST: ) is the supreme law of India. The document lays down the framework that demarcates fundamental political code, structure, procedures, powers, and duties of government institutions and sets out fundamental r ...
should be declared unconstitutional. This was a significant reversal from 1951—when the Indian Supreme Court declared that the constitutional amendment power was unlimited.
Italy
Similar to Germany, the Italian Republic was born out of
fascism
Fascism is a far-right, authoritarian, ultra-nationalist political ideology and movement,: "extreme militaristic nationalism, contempt for electoral democracy and political and cultural liberalism, a belief in natural social hierarchy an ...
. The
Constitution of Italy
The Constitution of the Italian Republic ( it, Costituzione della Repubblica Italiana) was enacted by the Constituent Assembly on 22 December 1947, with 453 votes in favour and 62 against. The text, which has since been amended sixteen times, ...
, effective since 1948, is largely amendable, however the
Constitutional Court of Italy
The Constitutional Court of the Italian Republic ( it, Corte costituzionale della Repubblica Italiana) is the highest court of Italy in matters of constitutional law. Sometimes, the name ''Consulta'' is used as a metonym for it, because its sessi ...
(active since 1955) decides on the constitutionality of both ordinary laws and constitutional laws, for example, in respects to inviolable
human rights
Human rights are Morality, moral principles or Social norm, normsJames Nickel, with assistance from Thomas Pogge, M.B.E. Smith, and Leif Wenar, 13 December 2013, Stanford Encyclopedia of PhilosophyHuman Rights Retrieved 14 August 2014 for ce ...
, highlighted by the Constitution's "Article 2". The Constitutional Court's ruling is final and not subject to appeal.
An example of a unconstitutional constitutional amendment is Italy's
republic
A republic () is a "state in which power rests with the people or their representatives; specifically a state without a monarchy" and also a "government, or system of government, of such a state." Previously, especially in the 17th and 18th c ...
an
form of government
A government is the system or group of people governing an organized community, generally a state.
In the case of its broad associative definition, government normally consists of legislature, executive, and judiciary. Government is a ...
which is explicitly protected in
entrenched clause
An entrenched clause or entrenchment clause of a constitution is a provision that makes certain amendments either more difficult or impossible to pass. Overriding an entrenched clause may require a supermajority, a referendum, or the consent of the ...
and impossible to amend.
Countries that rejected this theory
Finland
The
Parliament of Finland
The Parliament of Finland ( ; ) is the unicameral and supreme legislature of Finland, founded on 9 May 1906. In accordance with the Constitution of Finland, sovereignty belongs to the people, and that power is vested in the Parliament. The ...
enjoys
parliamentary sovereignty
Parliamentary sovereignty, also called parliamentary supremacy or legislative supremacy, is a concept in the constitutional law of some parliamentary democracies. It holds that the legislative body has absolute sovereignty and is supreme over all ...
: its acts do not undergo judicial review, and cannot be stricken down by any court, so the constitutionality of a constitutional amendment is a purely political question. A supermajority can immediately enact an emergency constitutional amendment. In 1973,
President of Finland
The president of the Republic of Finland ( fi, Suomen tasavallan presidentti; sv, Republiken Finlands president) is the head of state of Finland. Under the Constitution of Finland, executive power is vested in the Finnish Government and the p ...
Urho Kekkonen
Urho Kaleva Kekkonen (; 3 September 1900 – 31 August 1986), often referred to by his initials UKK, was a Finnish politician who served as the eighth and longest-serving president of Finland from 1956 to 1982. He also served as Prime Minister ...
requested a four-year term extension by means of an emergency constitutional amendment, in order to avoid arranging presidential elections. He succeeded in persuading the opposition
National Coalition Party
sv, Samlingspartiet
, leader1_title = Chairman
, leader1_name = Petteri Orpo
, leader2_title = Deputy chairs
, leader2_name = Antti Häkkänen Elina ValtonenAnna-Kaisa Ikonen
, merger = Finnish Party, Young Finnis ...
and
Swedish People's Party
The Swedish People's Party of Finland ( sv, Svenska folkpartiet i Finland (SFP); fi, Suomen ruotsalainen kansanpuolue (RKP)) is a list of political parties in Finland, political party in Finland aiming to represent the interests of the minority ...
to vote for the amendment, and got his extension.
Finland has had for most of its independence a
semi-presidential system
A semi-presidential republic, is a republic in which a president exists alongside a prime minister and a cabinet, with the latter two being responsible to the legislature of the state. It differs from a parliamentary republic in that it has a ...
, but in the last few decades the powers of the President have been diminished. Constitutional amendments, which came into effect in 1991 and 1992, as well as the most recently drafted constitution of 2000 (amended in 2012), have made the presidency a primarily ceremonial office.
United Kingdom
The
Constitution of the United Kingdom
The constitution of the United Kingdom or British constitution comprises the written and unwritten arrangements that establish the United Kingdom of Great Britain and Northern Ireland as a political body. Unlike in most countries, no attempt ...
is not strictly codified in contrast to that of many other nations. This enables the constitution to be easily changed as no provisions are formally entrenched. The United Kingdom has a doctrine of
parliamentary sovereignty
Parliamentary sovereignty, also called parliamentary supremacy or legislative supremacy, is a concept in the constitutional law of some parliamentary democracies. It holds that the legislative body has absolute sovereignty and is supreme over all ...
, so the
Supreme Court of the United Kingdom
The Supreme Court of the United Kingdom (initialism: UKSC or the acronym: SCOTUK) is the final court of appeal in the United Kingdom for all civil cases, and for criminal cases originating in England, Wales and Northern Ireland. As the Unite ...
(active since 2009) is in fact limited in its powers of
judicial review
Judicial review is a process under which executive, legislative and administrative actions are subject to review by the judiciary. A court with authority for judicial review may invalidate laws, acts and governmental actions that are incompat ...
as it cannot overturn any
primary legislation
Primary legislation and secondary legislation (the latter also called delegated legislation or subordinate legislation) are two forms of law, created respectively by the legislature, legislative and executive (government), executive branches of ...
made by the
Parliament of the United Kingdom
The Parliament of the United Kingdom is the supreme legislative body of the United Kingdom, the Crown Dependencies and the British Overseas Territories. It meets at the Palace of Westminster, London. It alone possesses legislative suprema ...
and any
Act of Parliament
Acts of Parliament, sometimes referred to as primary legislation, are texts of law passed by the Legislature, legislative body of a jurisdiction (often a parliament or council). In most countries with a parliamentary system of government, acts of ...
can become part of the UK's constitutional sources without binding scrutiny.
Potential future applications
![Erwin chemerinsky 09-2007](https://upload.wikimedia.org/wikipedia/commons/e/e4/Erwin_chemerinsky_09-2007.JPG)
In a 2016
op-ed
An op-ed, short for "opposite the editorial page", is a written prose piece, typically published by a North-American newspaper or magazine, which expresses the opinion of an author usually not affiliated with the publication's editorial board. O ...
, published just a month after the
2016 US presidential election
The 2016 United States presidential election was the 58th quadrennial presidential election, held on Tuesday, November 8, 2016. The Republican ticket of businessman Donald Trump and Indiana governor Mike Pence defeated the Democratic ticket ...
, US law professor
Erwin Chemerinsky
Erwin Chemerinsky (born May 14, 1953) is an American legal scholar known for his studies of United States constitutional law and federal civil procedure. Since 2017, Chemerinsky has been the dean of the UC Berkeley School of Law. Previously, he a ...
argued that the
United States Supreme Court
The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that involve a point o ...
should declare the unequal allocation of
electoral college votes to be unconstitutional due to it being (in his opinion) contrary to the
equal protection
The Equal Protection Clause is part of the first section of the Fourteenth Amendment to the United States Constitution. The clause, which took effect in 1868, provides "''nor shall any State ... deny to any person within its jurisdiction the equa ...
principles that the US Supreme Court has found in the
Fifth Amendment.
Chemerinsky argues that a part of the
United States Constitution
The Constitution of the United States is the Supremacy Clause, supreme law of the United States, United States of America. It superseded the Articles of Confederation, the nation's first constitution, in 1789. Originally comprising seven ar ...
can be unconstitutional if it conflicts with some principle(s) in a subsequent US constitutional amendment (specifically as this amendment is interpreted by the courts).
At around the same time that Chemerinsky published his op-ed, in an article in the
Huffington Post
''HuffPost'' (formerly ''The Huffington Post'' until 2017 and sometimes abbreviated ''HuffPo'') is an American progressive news website, with localized and international editions. The site offers news, satire, blogs, and original content, and ...
, US law professor
Leon Friedman made an argument similar to Chemerinsky's.
In a 2018 blog post, US law professor
Michael Dorf points out that it is ''possible'' (as opposed to ''plausible'') for the United States Supreme Court (SCOTUS) to utilize the unconstitutional constitutional amendment doctrine to strike down the unequal apportionment in the
United States Senate
The United States Senate is the upper chamber of the United States Congress, with the House of Representatives being the lower chamber. Together they compose the national bicameral legislature of the United States.
The composition and pow ...
(which violates the
one person, one vote
"One man, one vote", or "one person, one vote", expresses the principle that individuals should have equal representation in voting. This slogan is used by advocates of political equality to refer to such electoral reforms as universal suffrage, ...
principle); in the very same article, however, Dorf also expresses extreme skepticism that the US Supreme Court (or even a single justice on the US Supreme Court) would actually embrace the unconstitutional constitutional amendment doctrine—at least anytime soon.
In a 2019 article, Yaniv Roznai and Tamar Hostovsky Brandes embraced the argument previously proposed by Rosalind Dixon and David Landau and argued that since the constitutional replacement process can also be abused, it would be permissible and legitimate for courts to strike down constitutional replacements that are not fully democratic or inclusive.
In other words, Yoznai and Hostovsky Brandes argue that the more the constitutional replacement process resembles the ''secondary constituent power'' (as opposed to the ''primary constituent power''), the more legitimate it would be for the judiciary to strike down any constitution that was produced through a constitutional replacement process.
Criticism
![Panorama of United States Supreme Court Building at Dusk](https://upload.wikimedia.org/wikipedia/commons/d/da/Panorama_of_United_States_Supreme_Court_Building_at_Dusk.jpg)
United States law professor Mike Rappaport criticizes the ''unconstitutional constitutional amendment'' doctrine and argues that the adoption of this doctrine in the US would undermine
popular sovereignty
Popular sovereignty is the principle that the authority of a state and its government are created and sustained by the consent of its people, who are the source of all political power. Popular sovereignty, being a principle, does not imply any ...
because nine unelected US Supreme Court Justices with
life tenure
A life tenure or service during good behaviour is a term of office that lasts for the office holder's lifetime, unless the office holder is removed from office for cause under misbehaving in office, extraordinary circumstances or decides personall ...
would give themselves the power to overturn the will of a huge majority of the
American people
Americans are the Citizenship of the United States, citizens and United States nationality law, nationals of the United States, United States of America.; ; Although direct citizens and nationals make up the majority of Americans, many Multi ...
.
Rappaport points out that having the US Supreme Court adopt this doctrine might not always result in outcomes that
liberal
Liberal or liberalism may refer to:
Politics
* a supporter of liberalism
** Liberalism by country
* an adherent of a Liberal Party
* Liberalism (international relations)
* Sexually liberal feminism
* Social liberalism
Arts, entertainment and m ...
living constitutionalists are actually going to like (for instance, Rappaport argues that the US Supreme Court could use this doctrine to strike down a new constitutional amendment that will overturn the 2010 ''
Citizens United
Citizenship is a "relationship between an individual and a state to which the individual owes allegiance and in turn is entitled to its protection".
Each state determines the conditions under which it will recognize persons as its citizens, and ...
'' ruling due to a belief that this new amendment conflicts with the
First Amendment
First or 1st is the ordinal form of the number one (#1).
First or 1st may also refer to:
*World record, specifically the first instance of a particular achievement
Arts and media Music
* 1$T, American rapper, singer-songwriter, DJ, and rec ...
and the idea of free speech that the First Amendment embodies) and also argues that such a move on the part of the US Supreme Court would obstruct the US constitutional amendment process even further because people might hesitate to put effort into passing a new constitutional amendment if they thought that the US Supreme Court could strike down the amendment and declare it unconstitutional.
Rappaport is also critical of the tendency in the US to use the
judiciary
The judiciary (also known as the judicial system, judicature, judicial branch, judiciative branch, and court or judiciary system) is the system of courts that adjudicates legal disputes/disagreements and interprets, defends, and applies the law ...
to achieve various constitutional changes outside of the
Article V constitutional amendment process because this reduces the incentive to actually pass and ratify new US constitutional amendments since achieving constitutional change through the courts is astronomically easier than going through the extremely long and cumbersome Article V constitutional amendment process (as convincing five or more Justices on the US Supreme Court to agree with one's position is astronomically easier than getting two-thirds of the US Congress and three-fourths of
US state legislatures to agree with one's position).
Meanwhile, Conall Towe criticizes the ''unconstitutional constitutional amendment'' doctrine for violating two
canons of construction
Statutory interpretation is the process by which courts interpret and apply legislation. Some amount of interpretation is often necessary when a case involves a statute. Sometimes the words of a statute have a plain and a straightforward mean ...
: specifically the ''
lex specialis
''Lex specialis'', in legal theory and practice, is a doctrine relating to the interpretation of laws and can apply in both domestic and international law contexts. The doctrine states that if two laws govern the same factual situation, a law gover ...
'' canon and the ''
expressio unius est exclusio alterius
Statutory interpretation is the process by which courts interpret and apply legislation. Some amount of interpretation is often necessary when a case involves a statute. Sometimes the words of a statute have a plain and a straightforward mean ...
'' canon.
The ''lex specialis'' canon states that specific language should trump general language whenever possible–with Towe citing a statement by Professor Oran Doyle that "it is not permissible to over-write one clear provision in favour of an amorphous spirit that has no particular textual foundation".
Specifically, Towe uses an argument that George Washington Williams previously used back in 1928–as in, "if the constituent power is all-powerful, and the constituent power is expressed via the text of the constitution
then it is difficult to see how implicit unamendability on the basis of constituent power theory can avoid
hecharge
hat
A hat is a head covering which is worn for various reasons, including protection against weather conditions, ceremonial reasons such as university graduation, religious reasons, safety, or as a fashion accessory. Hats which incorporate mecha ...
it simultaneously disregards the constitution under the pretence of upholding it."
Meanwhile, the ''expressio unius est exclusio alterius'' canon states that the specific inclusion of one thing in a legal text or document excludes other things that were not mentioned in it.
While Towe argues that a literal reading of the constitutional text can be ignored in cases where it will produce an absurd outcome–a move that is in fact permitted by the ''
absurdity doctrine''–Towe rejects the idea that carefully crafted unlimited amendment powers are absurd.
Towe also wonders why exactly ''any'' constitutional provisions were made explicitly unamendable if implicit unamendability is so obvious; after all, if implicit unamendability was indeed so obvious, then there would be no need to make ''any'' constitutional provisions explicitly unamendable.
In contrast, if certain provisions were made explicitly unamendable, Towe wonders why exactly the draftsmen of a particular constitution would not have made explicitly unamendable ''all'' of the constitutional provisions that they indeed wanted to be unamendable.
On a separate note, Conall Towe also criticizes Yaniv Roznai's conceptual framework in regards to ''primary constituent power'' and ''secondary constituent power'' for violating ''
Occam's Razor
Occam's razor, Ockham's razor, or Ocham's razor ( la, novacula Occami), also known as the principle of parsimony or the law of parsimony ( la, lex parsimoniae), is the problem-solving principle that "entities should not be multiplied beyond neces ...
'', which states that the simplest explanations possible for various
phenomena
A phenomenon ( : phenomena) is an observable event. The term came into its modern philosophical usage through Immanuel Kant, who contrasted it with the noumenon, which ''cannot'' be directly observed. Kant was heavily influenced by Gottfried W ...
should be preferred.
Professor Oran Doyle has also previously criticized Yaniv Roznai's conception of the ''people as primary constituent power'' and the ''people as secondary constituent power'' as separate entities for violating ''Occam's Razor''–with Doyle arguing that ''constituent power'' should be best thought of as a capacity rather than as an entity.
In a 1985 article of his, United States law professor John R. Vile argues against the idea of having judges impose implicit limits on the United States constitutional amendment power for fear that such judicial power could just as easily be used for bad or evil ends as for good or desirable ends–especially if the original text of a particular constitution, such as the original text of the
United States Constitution
The Constitution of the United States is the Supremacy Clause, supreme law of the United States, United States of America. It superseded the Articles of Confederation, the nation's first constitution, in 1789. Originally comprising seven ar ...
, is not particularly
liberal
Liberal or liberalism may refer to:
Politics
* a supporter of liberalism
** Liberalism by country
* an adherent of a Liberal Party
* Liberalism (international relations)
* Sexually liberal feminism
* Social liberalism
Arts, entertainment and m ...
or
progressive
Progressive may refer to:
Politics
* Progressivism, a political philosophy in support of social reform
** Progressivism in the United States, the political philosophy in the American context
* Progressive realism, an American foreign policy par ...
to begin with.
For instance, Vile points out that a reactionary United States Supreme Court could have struck down the progressive
Reconstruction Amendments
The , or the , are the Thirteenth, Fourteenth, and Fifteenth amendments to the United States Constitution, adopted between 1865 and 1870. The amendments were a part of the implementation of the Reconstruction of the American South which occ ...
(which abolished
slavery
Slavery and enslavement are both the state and the condition of being a slave—someone forbidden to quit one's service for an enslaver, and who is treated by the enslaver as property. Slavery typically involves slaves being made to perf ...
and extended both
human rights
Human rights are Morality, moral principles or Social norm, normsJames Nickel, with assistance from Thomas Pogge, M.B.E. Smith, and Leif Wenar, 13 December 2013, Stanford Encyclopedia of PhilosophyHuman Rights Retrieved 14 August 2014 for ce ...
and the
suffrage
Suffrage, political franchise, or simply franchise, is the right to vote in representative democracy, public, political elections and referendums (although the term is sometimes used for any right to vote). In some languages, and occasionally i ...
to
African-Americans
African Americans (also referred to as Black Americans and Afro-Americans) are an ethnic group consisting of Americans with partial or total ancestry from sub-Saharan Africa. The term "African American" generally denotes descendants of ensl ...
) as being unconstitutional and also struck down hypothetical progressive amendments that would extend legal protection to the
handicapped
Disability is the experience of any condition that makes it more difficult for a person to do certain activities or have equitable access within a given society. Disabilities may be cognitive, developmental, intellectual, mental, physical, se ...
, the
aged
Ageing ( BE) or aging ( AE) is the process of becoming older. The term refers mainly to humans, many other animals, and fungi, whereas for example, bacteria, perennial plants and some simple animals are potentially biologically immortal. In ...
, and the
unborn.
Vile also argues that the United States constitutional amendment process is meant to serve as a "safety-valve" in order to provide a legal avenue to achieving constitutional change–however radical and far-reaching–so that
revolution
In political science, a revolution (Latin: ''revolutio'', "a turn around") is a fundamental and relatively sudden change in political power and political organization which occurs when the population revolts against the government, typically due ...
in the United States can be avoided.
Vile argues that without any legal avenue to achieve certain constitutional changes, the American people might feel compelled to spark a revolution in order to achieve their desired changes to the United States constitutional order.
Responses to criticism
In response to criticism that the unconstitutional constitutional amendment theory blocks constitutional change, US law professor David Landau pointed out that this theory has ways to get around it.
Specifically, Landau argues that political actors can engage in wholesale
constitutional replacement in response to a judicial ruling that declares a particular constitutional amendment to be unconstitutional and also argues that political actors can "exert influence over the court
through appointments and other devices[]" in order to have the courts deliver rulings in these political actors' favor.
Thus Landau, along with
Australia
Australia, officially the Commonwealth of Australia, is a Sovereign state, sovereign country comprising the mainland of the Australia (continent), Australian continent, the island of Tasmania, and numerous List of islands of Australia, sma ...
n law professor Rosalind Dixon, argues that a "speed bump" is the more proper comparison for the unconstitutional constitutional amendment doctrine and that while the unconstitutional constitutional amendment doctrine can delay change–perhaps with the hope of allowing a new political configuration to emerge in the meantime–it cannot ''permanently'' prevent constitutional change because political actors have workarounds (specifically those mentioned earlier in this paragraph) to achieve constitutional change even in the face of an initially hostile judiciary.
See also
*
Judicial activism
Judicial activism is a judicial philosophy holding that the courts can and should go beyond the applicable law to consider broader societal implications of its decisions. It is sometimes used as an antonym of judicial restraint. The term usually ...
*
Living Constitution
The Living Constitution, or judicial pragmatism, is the viewpoint that the United States Constitution holds a dynamic meaning that evolves and adapts to new circumstances even if the document is not formally amended. The Constitution is said ...
*
Originalism
In the context of United States law, originalism is a theory of constitutional interpretation that asserts that all statements in the Constitution must be interpreted based on the original understanding "at the time it was adopted". This conce ...
References
{{Reflist
Constitutional law
United States constitutional commentary
Theories of law
United States constitutional law
Constitution of India