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An Unamendable Constitution?: Unamendability in Constitutional Democracies

An Unamendable Constitution?: Unamendability in Constitutional Democracies

Author: Richard Albert; Bertil Emrah Oder
Publisher: Springer-Verlag
ISBN: 9783319951409
Published In: September 2018
Format: Hardback
Jurisdiction: Switzerland ? Disclaimer:
Countri(es) stated herein are used as reference only

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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.

Chapter 1. The Forms of Unamendability

Part I: The Legitimacy and Limits of Unamendability

Chapter 2. Necrocracy or Democracy? Assessing Objections to Constitutional Unamendability

Chapter 3. A Constitution for Eternity: An Economic Theory of Explicit Unamendability

Chapter 4. Conventions of Unamendability: Covert Constitutional Unamendability in (Two) Politically Enforced Constitutions

Chapter 5. Credible Commitment or Paternalism? The Case of Unamendability

Part II: Unamendability around the World

Chapter 6. Constitutional Falsehoods: The Fourth Judges Case and the Basic Structure Doctrine in India

Chapter 7. Unamendability in Israel: A Critical Perspective

Chapter 8. Eternal Provisions in the Bangladeshi Constitution: A "Constitution Once and For All"?

Chapter 9. Unamendability as a judicial discovery? Inductive learning lessons from Hungary

Chapter 10. Amending the Unamendable: The Case of Article 20 of the German Basic Law

Chapter 11. Debating Unamendability: Deadlock in Turkey's Constitution-Making Process

Chapter 12. The Unamendability of Amendable Clauses: The Case of the Turkish Constitution

Chapter 13. Brazil in the Context of the Debate Over Unamendability in Latin America

Chapter 14. Unamendable Constitutional Provisions and the European Common Constitutional Heritage: A Comparison Among Three Waves of Constitutionalism.