Unconstitutional Constitutional Amendments—The Migration and Success of a Constitutional Idea

Abstract

Can a constitutional amendment be unconstitutional? Prima facie, this seems like a paradox. This vexing issue has attracted increased attention in recent years. Whereas the definition of the nature of constitutional amendment power is among the most abstract questions of constitutional theory, the question of limits on constitutional amendments is not purely of academic interest. It has practical application; the issue has already been adjudicated in numerous countries and is likely to arise, sooner or later, in other countries as well. This issue of limits is a fundamental one and much could be gained from comparative study. This Article aims to trace the migration of limited amendment power and of judicial review of constitutional amendments through different jurisdictions and to paint a broad pattern of "constitutional behavior." It appears that the global trend is moving towards accepting the idea of limitations—explicit or implicit—on constitutional amendment power. Bearing in mind the difficulties of borrowing (or transplanting) constitutional ideas from different jurisdictions into other legal cultures, this Article claims that limitations upon the amendment power is just one example of the larger phenomenon of the migration of legal ideas. At times, the notion of limited amendment power migrated intact into other jurisdictions, but on other occasions it also absorbed local content, primarily to acknowledge prior events and past experiences. The fact that this concept traveled across continents and entered different legal systems shows that borrowing a constitutional idea can be successful, even within very dissimilar legal systems. This comparative investigation into the origins and the migration of the idea of limits to the amending power will highlight the uniqueness of each legal system and unravel the conundrum of unconstitutional constitutional amendments itself.

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