by Yaniv Roznai
Many constitutions, old and modern, include various substantive limitations on the ability to amend the constitution. According to these limitations certain principles, institutions or rules are ‘unamendable’. In other words, their amendment would be prohibited.1 Most of the world’s unamendable provisions are non-self-entrenched provisions, i.e. they establish the unamendability of certain constitutional subjects but they are themselves not entrenched.2 Can non-self-entrenched provisions be amended? As a matter of practice, the answer is positive. For example, in 1989, the unamendable provision in the Portuguese Constitution of 1976 (Art. 288) was itself amended and the unamendable principle of collective ownership of means of production was omitted, in order to comply with the European Community’s norms and in the context of the collapse of communism.3 Paulo Ferreira Da Cunha notes that this amendment ‘has always shocked us because it undermines the standard meaning and thus causes the Constitution to lose all of its enforceability.4 Indeed, the more accurate question appears to be not whether ‘unamendable provisions’ can be amended, but whether such a change would be constitutional? Interestingly, in the Portuguese case, the court was never asked to review the validity of this controversial amendment.5
It seems that there are three theoretical approaches for solving the challenge posed by non-self-entrenched provisions. According to the first approach, if unamendable provisions are non-self-entrenched, unamendable principles or provisions may be amended in a double amendment procedure. The first stage is to repeal the provision prohibiting certain amendments through an amendment, an act that is not in itself a violation of the constitution. The second stage is to amend the previously unamendable principle or provision, which is no longer protected from amendments.6 This approach finds supporters in the French,7 Norwegian,8 and American9 debates.
According to the second approach, there is no need for a two-stage process as the unamendable provision and the protected subject could both be repealed in the same act. As Douglas Linder puts it, ‘only a hide-bound formalist would contend that the difference [between one and two amendments] is significant’.10 Substantively, the outcome is similar.
The third approach rejects such attempts by the amendment power to circumvent limitations that are set upon it. At the outset, it is important to admit that from a purely practical point of view, in order to avoid the double amendment procedure tactic, a clever constitution-maker would draft self-entrenched unamendable provisions, i.e. unamendable provisions that by their express terms not only prohibit amendments of certain subjects, but also prohibit amendments to themselves (a ‘double entrenchment mechanism’11). True, the unamendable provision cannot, as Vedel puts it, ‘be given to a jailer who will guard its intangibility’,12 but it could be self-entrenched. This mechanism, which exists in several constitutions,13 could block the aforementioned loophole.14
I argue that even if unamendable provisions are not self-entrenched, they should be implicitly recognised as unamendable. Liet-Veaux famously described the use of the French Third Republic’s legal devices in order to form the Vichy regime as ‘Fraude a la Constitution’.15 Whereas the double-amendment procedure, which Walter Murphy described as a ‘sleazy escape route’,16 may be tolerable from a purely formalistic perspective, such a legal manoeuvre may also be regarded as ‘fraud upon the constitution’. From a practical point of view, if unamendable provisions could be amended by means of the same procedure required to amend other provisions, they would almost be devoid of meaning.17 Why almost? The declaration of unamendability remains important even if conceived as eventually amendable because its removal would still necessitate political and public deliberations regarding the protected constitutional subject. Such deliberations grant the unamendable provision important role. Moreover, the unamendability adds a procedural hurdle – and thus, a better protection – since the double amendment process is still procedurally more difficult than a single amendment process. Lastly, the unamendability of a provision might have a ‘chilling effect’, leading to hesitation before repealing the so-called unamendable subject.18
It is true that, formally speaking, by amending the non-self-entrenched unamendable provision (the first stage), the amendment authority prima facie purports to act within the limits of its lawful powers. However, it is clear that substantively, it transgresses those limits. In 1867, the U.S. Supreme Court declared that ‘what cannot be done directly cannot be done indirectly. The Constitution deals with substance, not with shadows’.19 Indeed, this maxim, without which constitutional provisions ‘would be meaningless’,20 equally applies with regards to the amendment power. Therefore, Jason Mazzone is correct in claiming that unamendable provisions should be given a purposive interpretation according to which they are implicitly self-entrenched.21 The double-amendment procedure should therefore be rejected on both theoretical and practical grounds.22
*The author is a Post-Doctoral Global Fellow, Hauser Global Law School’s Global Fellows Program, New York University (NYU) (Spring, 2015); Director of Research and Post-Doctoral Fellow, The Minerva Center for the Rule of Law under Extreme Conditions, University of Haifa; and Secretary General, The Israeli Association of Public Law.
1. See e.g. Christoph Bezemek, ‘Constitutional Core(s): Amendments, Entrenchments, Eternities and Beyond Prolegomena to a Theory of Normative Volatility’, J. Juris 517 (2011); Richard Albert, ‘Counterconstitutionalism’31 Dalhousie L.J. 1 (2008). For my own work on this issue see e.g. Yaniv Roznai and Serkan Yolcu, ‘An Unconstitutional Constitutional Amendment – The Turkish Perspective: A comment on the Turkish Constitutional Court’s headscarf decision’, 10(1) Int’l J. Const. L. 175 (2012); Yaniv Roznai, ‘Legisprudence Limitations on Constitutional Amendments? Reflections on the Czech Constitutional Court’s Declaration of Unconstitutional Constitutional Act’, 8(1) Vienna Journal on International Constitutional Law 29 (2014); Yaniv Roznai, ‘Unconstitutional Constitutional Amendments – The Migration and Success of a Constitutional Idea’, 61(3) Am. J. Com. L. 657 (2013) Yaniv Roznai, Unconstitutional Constitutional Amendments: A Study of The Nature and Limits of Constitutional Amendment Powers (a thesis submitted to the Department of Law of the London School of Economics and Political Science for the degree of Doctor of Philosophy February 2014), 22-47.
2. This is, for example, the situation with regard to Bulgarian Const. (1991), art. 57; the German Basic Law (1949), art. 79; the Romanian Const. (1991), art. 14. See Jon Elster, Ulysses Unbound – Studies in Rationality, Precommitment, and Constraints (Cambridge University Press, 2000), 102.
3. Víctor Ferreres Comella, Constitutional Courts & Democratic Values – A European Perspective (Yale University Press, 2009), 207, fn 39 (for more on the unamendable provision in the Portuguese Constitution see also at 107); Jonatas E. M. Machado, ‘The Portuguese Constitution of 1976 – Half-life and Decay’, in Xenophon Contiades ed., Engineering Constitutional Change: A Comparative Perspective on Europe, Canada and the USA (Routledge, 2012), 273, 286-287,296-297.
4. Paulo Ferreira Da Cunha, ‘Constitutional Sociology and Politics: Theories and Memories’, 5 Silesian Journal of Legal Studies 11, 25 (2013).
5. See European Commission for Democracy Through Law (Venice Commission), Report on Constitutional Amendment, adopted by the Venice Commission at its 81st Plenary Session, (Venice, December 11-12, 2009), para. 213, http://www.venice.coe.int/docs/2010/CDL-AD(2010)001-e.asp?PrintVersion=True&L=E#P768_153923
6. Virgilio Afonso Da Silva, ‘A Fossilised Constitution?’, 17(4) Ratio Juris 454, 456-458 (2004).
7. George A. Bermann and Etienne Picard, Introduction to French Law (Kluwer Law International, 2008), 13; Georges Vedel, Manuel Elementaire de Droit Constitutionnel (Sirey, 1949) 117, cited in Claude Klein, ‘Le Controle des lois Constitutionnelles – Introduction a une Problematique Modern’ (2011) (file with author).
8. See debate in Eivind Smith, ‘Old and Protected? On the “Supra-Constitutional” Clause in the Constitution of Norway’, 44 Isr. L. Rev. 369, 375 (2011).
9. Lawrence Tribe, American Constitutional Law (3rd edn, Foundation Press, 2000), 111-114. For support and opposition of this approach within the American debate see Lester B. Orfield, The Amending the Federal Constitution (University of Michigan Press, 1942), 85.
10. Douglas Linder, ‘What in the Constitution Cannot Be Amended?’, 23 Ariz. L. Rev. 717, 729 (1981).
11. Richard D. Lumb, ‘Fundamental Law and the Processes of Constitutional Change in Australia’, 9 Fed. L. Rev. 148, 170 (1978). On the logical problems inherent in ‘self-referring laws’ see Peter Suber, The Paradox Of Self-Amendment: A Study Of Logic, Law, Omnipotence, and Change (Peter Lang Publishing, 1990); HLA Hart, ‘Self-Referring Laws’ in Essays in Jurisprudence and Philosophy (Oxford University Press, 1983), 170; Alf Ross, ‘On Self Reference as a Puzzle in Constitutional Law’, 78 Mind 1(1969).
12. Cited in Claude Klein, ‘Le Controle des lois Constitutionnelles – Introduction a une Problematique Modern’ (2011) (file with author), fn 10.
13. See, for example, Armenia Const. (1995), art. 114; Bosnia and Herzegovina Const. (1995), art. X2; Honduras Const. (1982), art. 374; Niger Const. (2010), Art. 177; Rwanda Const. (2003), art. 193.
14. See Philip A. Joseph and Gordon R. Walker, ‘A Theory of Constitutional Change’, 7 Oxford J. Legal Stud. 155, 159 (1987).
15. Georges Liet-Veaux, ‘La ‘Fraude a la Constitution’: Essai d’une Analyse Juridiques des Révolutions Communitaires Récentes: Italie, Allemand, France’, 59 Revue Du Droit Et De Science Politique En France Et A L‘etranger 116 (1943), cited in C Klein, Théorie et Pratique du Pouvoir Constituent (Les voies du droit, 1996), 153-156.
16. Walter F. Murphy, Constitutional Democracy: Creating and Maintaining a Just Political Order (Johns Hopkins University Press, Baltimore, 2007), 504. See also Akhil Reed Amar, America’s Constitution: A Biography (Random House, 2006), 293 (calling it ‘sly scheme’) and Thomas E. Baker, ‘Exercising the Amendment Power to Disapprove of Supreme Court Decisions: A Proposal for a “Republican Veto”’, 22 Hastings Const. L.Q. (1994), 325, 340 fn.47 (calling it ‘disingenuous’).
17. Virgilio Afonso Da Silva, ‘A Fossilised Constitution?’, 17(4) Ratio Juris 454, 470 (2004); William T. Han, ‘Chain Novels and Amendments Outside Article V: A Literary Solution To A Constitutional Conundrum’, 33 Hamline L. Rev. 71, 91 (2010).
18. Jason Mazzone, ‘Unamendments’, 90 Iowa L. Rev. 1747, 1818 (2005).
19. Cummings v. Missouri, 71 U.S. 277, 325 (1867); see also Lester B. Orfield, ‘The Scope of the Federal Amending Power’, 28 Mich. L. Rev. 550, 577 (1929-1930).
20. D. K. Singh, ‘”What Cannot Be Done Directly Cannot Be Done Indirectly”: Its Meaning And Logical Status In Constitutionalism’, 29 Mod. L. Rev. 273, 278, 286-287 (1966).
21. Mazzone, supra note 18, at 1818.
22. For a similar approach see Claude Klein, ‘A propos Constituent Power: Some General Views in a Modern Context’, in Antero Jyränki ed., National Constitutions in the Era of Integration (Kluwer Law International, 1999), 31, 37-38 and Melissa Schwartzberg, Democracy and Legal Change (Cambridge University Press, 2009), 9.