Unconstitutional Constitutional Amendments The Limits of Amendment Powers 1st Edition by Yaniv Roznai ISBN 0198768796 9780198768791

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ISBN 10: 0198768796 
ISBN 13: 9780198768791
Author: Yaniv Roznai

Can constitutional amendments be unconstitutional? The problem of ‘unconstitutional constitutional amendments’ has become one of the most widely debated issues in comparative constitutional theory, constitutional design, and constitutional adjudication. This book describes and analyses the increasing tendency in global constitutionalism to substantively limit formal changes to constitutions. The challenges of constitutional unamendability to constitutional theory become even more complex when constitutional courts enforce such limitations through substantive judicial review of amendments, often resulting in the declaration that these constitutional amendments are ‘unconstitutional’. Combining historical comparisons, constitutional theory, and a wide comparative study, Yaniv Roznai sets out to explain what the nature of amendment power is, what its limitations are, and what the role of constitutional courts is and should be when enforcing limitations on constitutional amendments.

Unconstitutional Constitutional Amendments The Limits of Amendment Powers 1st Table of contents:

Part I: Comparative Constitutional Unamendability
1: Explicit Constitutional Unamendability
Unamendable provisions
Origins and development
Examining unamendable provisions
Structure
Content
Characteristics
a) Preservative
b) Transformative
c) Aspirational
d) Conflictual
e) Bricolage
Conclusion
2: Implicit Constitutional Unamendability
The genesis of the theory of implicit unamendability
The Indian ‘Basic Structure Doctrine’
The ‘Basic Structure Doctrine’: A tour d’horizon
Asia
a) Bangladesh
b) Pakistan
c) South Korea, Japan, China, Taiwan, and Thailand
d) Sri Lanka, Malaysia, and Singapore
Africa
a) Kenya
b) South Africa
c) Tanzania
Central and South America
a) Argentina, Colombia, and Peru
b) Caribbean
Conclusion
3: Supra-constitutional Unamendability
Introduction
Natural law
General
Germany
Ireland
Evaluation
International law
General
The alleged supremacy of supranational law
The problem of external v. internal espace juridique
The role of national courts
The eventual superiority of domestic constitutional law
Conclusion
Part II: Towards a Theory Of Constitutional Unamendability
4: The Nature of Constitutional Amendment Powers
Constituent power and constituted power
The amendment power as sui generis
The secondary constituent power
The distinction between ‘original’ and ‘derived’ constituent powers
Integration: A theory of delegation
Terminological clarifications
a) Primary and secondary constituent powers
b) Power and authority
Unamendability and primary constituent power
A three-track democracy
We the ‘limited’ people?
Encouraging a revolution?
Conclusion
5: The Scope of Constitutional Amendment Powers
Explicit unamendability
The validity of unamendable provisions
An ‘unamendable amendment’?
Amending ‘unamendable’ provisions
Implicit unamendability
Foundational structuralism
Hierarchy of constitutional values
Constitutional identity
The expressio unius est exclusio alterius maxim
Textualism
Conclusion
6: The Spectrum of Constitutional Amendment Powers
The binary code of amendment powers
The polymorphic nature of amendment powers
Popular and governmental amendment powers
Constitutional escalator
Linking unamendability and amendment procedures
Conclusion
Part III: Enforcing Constitutional Unamendability
7: Understanding Judicial Review of Constitutional Amendments
Rationales behind judicial review of constitutional amendments
Separation of powers
The essence of the judicial role
The rule and supremacy of the constitution
Political process failure
Responding to the critics
The subordination enigma
The ‘dead hand’ of the past
Undemocratic
Enhancing the judiciary’s power
Conclusion
8: Exercising Judicial Review of Constitutional Amendments
Authority to review constitutional amendments
Existence or absence of explicit unamendability
Different procedures for constitutional amendments
Foundational structuralist interpretation
Standard of review
Conclusion
Conclusion
Appendix: Explicit Substantive Unamendability in World Constitutions

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