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An Unamendable Constitution?

Unamendability in Constitutional Democracies

  • Richard Albert
  • Bertil Emrah Oder

Part of the Ius Gentium: Comparative Perspectives on Law and Justice book series (IUSGENT, volume 68)

Table of contents

  1. Front Matter
    Pages i-ix
  2. Richard Albert, Bertil Emrah Oder
    Pages 1-26
  3. The Legitimacy and Limits of Unamendability

  4. Unamendability Around the World

About this book

Introduction

This book examines the subject of constitutional unamendability from comparative, doctrinal, empirical, historical, political and theoretical perspectives. It explores and evaluates the legitimacy of unamendability in the various forms that exist in constitutional democracies.
 
Modern constitutionalism has given rise to a paradox: can a constitutional amendment be unconstitutional? Today it is normatively contested but descriptively undeniable that a constitutional amendment—one that respects the formal procedures of textual alteration laid down in the constitutional text—may be invalidated for violating either a written or unwritten constitutional norm. This phenomenon of an unconstitutional constitutional amendment traces its political foundations to France and the United States, its doctrinal origins to Germany, and it has migrated in some form to all corners of the democratic world. One can trace this paradox to the concept of constitutional unamendability. Constitutional unamendability can be understood as a formally entrenched provision(s) or an informally entrenched norm that prohibits an alteration or violation of that provision or norm. An unamendable constitutional provision is impervious to formal amendment, even with supermajority or even unanimous agreement from the political actors whose consent is required to alter the constitutional text. Whether or not it is enforced, and also by whom, this prohibition raises fundamental questions implicating sovereignty, legitimacy, democracy and the rule of law.

Keywords

Constitutionalism Constitutional Change Necrocracy or Democracy Constitution of Eternity Explicit Unamendability Politically Enforced Constitutions Unamendable Constitutional Provisions Constitutional Amendments Eternal Provisions Constitution Once and For All Unamendable Core of the Constitution European Common Constitutional Heritage Constitution-Making Process

Editors and affiliations

  • Richard Albert
    • 1
  • Bertil Emrah Oder
    • 2
  1. 1.School of LawThe University of Texas at AustinAustinUSA
  2. 2.Law SchoolKoç UniversitySarıyerTurkey

Bibliographic information

  • DOI https://doi.org/10.1007/978-3-319-95141-6
  • Copyright Information Springer International Publishing AG, part of Springer Nature 2018
  • Publisher Name Springer, Cham
  • eBook Packages Law and Criminology
  • Print ISBN 978-3-319-95140-9
  • Online ISBN 978-3-319-95141-6
  • Series Print ISSN 1534-6781
  • Series Online ISSN 2214-9902
  • Buy this book on publisher's site