Unconstitutional constitutional amendment
An unconstitutional constitutional amendment is a concept in judicial review based on the idea that even a properly passed and properly ratified constitutional amendment, specifically one that is not explicitly prohibited by a constitution's text, can nevertheless be unconstitutional on substantive grounds—such as due to this amendment conflicting with some constitutional or even extra-constitutional norm, value, and/or principle. As Israeli legal academic 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 and origination in the United States
The ability and willingness of the Supreme Court of the United States to overturn any constitutional amendment is questionable. The Constitution of the United States is codified, and Article V allows all amendments except for the condition that "no State, without its Consent, shall be deprived of its equal Suffrage in the Senate". Amendments to the Constitution are extremely rare; the last to be drafted was the Twenty-sixth in 1971, and the last to be adopted was the Twenty-seventh in 1992, which was originally drafted in 1789, but failed ratification and was forgotten.No amendment to the Constitution has ever been ruled unconstitutional by a court. Unlike the uncodified constitutions of many other countries, such as Israel and the United Kingdom, the codified US constitution sets high standards for amendments, but places few limits on the content of amendments. Nevertheless, some legal scholars support the possibility of unconstitutional amendments.
The idea of an unconstitutional constitutional amendment has been around since at least the 1890s—it was embraced by former Michigan Supreme Court Chief Justice Thomas M. Cooley in 1893 and US law professor Arthur Machen in 1910, Manchen arguing that the Fifteenth Amendment might be unconstitutional. Cooley insisted that amendments "cannot be revolutionary; they must be harmonious with the body of the instrument". He argued that "an amendment converting a democratic republican government into an aristocracy or a monarchy would not be an amendment, but rather a revolution" that would require the creation and adoption of a new constitution.
In a 1991 law review article, United States law professor Richard George Wright argues that an amendment "cannot amend if it renders a constitution unrecognizable" and can only be valid as part of a new constitution. He asserts that an amendment that abolishes one or more US states could be workable and therefore valid, but agrees with Yale law professor Akhil Amar that an amendment barring most political speech would be unworkable and unconstitutional. Wright finds that it would not only conflict with the First Amendment, but also render much of the rest of the Constitution meaningless.
Wright also agrees with US law professor Walter F. Murphy in that an amendment which enshrines white supremacy and denies the human dignity of non-whites would be unconstitutional; though it might be compatible with the pre-Civil War Constitution, it conflicts with the "commonly cited constitutional value of equality" and "the constitutional goal of advancing the common good."
In a 2015 article, Yaniv Roznai argues that the more that the expression of the secondary constituent power resembles the expression of a democratic primary constituent power, the less that it should be bound by limitations, 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, the more that it should be bound by limitations. 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 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 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 argues that there is a sound case that an amendment that transforms a constitution into some entity other than a constitution—for instance, by eliminating the rule of law—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 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 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.
National views about this theory
Countries that adopted this theory
Germany
Contemporary Germany arose from the ashes of World War II and the totalitarian experience of Nazism. Based on the legacy of the Weimar Constitution and especially on the correction of its flaws, the Federal Republic of Germany was born in 1949 and the Federal Constitutional Court 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 laws and constitutional laws passed by the Parliament are subject to its judicial review, since they have to be compatible with the core principles of the Basic Law for the Federal Republic of Germany defined by the eternity clause, i.e. articles 1-20, the federal structure of Germany and the participation of the federal states in legislation.Honduras
In 2015, the Supreme Court of Honduras declared unconstitutional a part of the original 1982 constitution of Honduras that created a one-term limit for the president of Honduras 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
In the 1960s and 1970s, the Indian Supreme Court articulated the basic structure doctrine—as in, the idea that a constitutional amendment that violates the basic structure of the Indian Constitution should be declared unconstitutional. This was a significant reversal from 1951—when the Indian Supreme Court declared that the constitutional amendment power was unlimited.Israel
does not have a unified constitution; its legal framework is instead codified in a series of quasi-constitutional Basic Laws.In July 2023, the ruling coalition under Prime Minister Benjamin Netanyahu passed an amendment to Basic Law: The Judiciary, which defines the powers of that branch of government. It would have limited the powers of the Supreme Court of Israel to strike down legislation that it considers contrary to the Basic Laws. The law was very controversial and led to widespread protests in the country.
On 1 January 2024, the Supreme Court ruled 12-3 that it may reject amendments to Basic Laws in "extreme" circumstances. That specific amendment was struck down by an 8–7 vote. In the decision, the justices noted that the judicial overhaul would jeopardise the basic characteristic of Israel as a democratic country.