By authorizing the exercise of judicial power by persons who were not judges appointed in the manner provided for by the constitution, it permitted actions in clear violation of at least two articles clearly set out in the document. Passed as a Public Safety Act, the amendment could not be mistaken for an emergency measure, as it conferred upon the executive permanent authority to exercise its special powers whenever, in its uncontrolled discretion, it deemed it expedient to do so.
Thus the terms of the amendment could be put into effect during conditions of absolute peace, and under these terms the tribunals could do just about anything, including sentencing people to death without a semblance of due process. As the one dissenting judge in State Lemmon v.
Lemmon , [] I. The objection to this constitutional monstrosity was that it was too radical fairly to be considered anything other than a de facto repeal of the constitution. As an assault on the basic scheme and principles of that document, it could only be upheld under the principle of lex posterior , according to which the recentness of a law establishes its priority over an earlier law of the same type. This also describes the essential process of parliamentary supremacy, which is, of course, a very British way of doing things.
And so one might have imagined that rejection of the amendment could have been a source of satisfaction for Irish judges seeking to affirm their nationalist bona fides. C ivil L iberties The majority justices were unmoved by Justice Kennedy's argument that any purported amendment repugnant to natural law would necessarily be unconstitutional and hence null and void. While not denying that the provision in question would be impossible to justify as an act sanctioned by God, they firmly asserted a judicial incapacity to determine what constitutional features were fundamental and what were not, which left the legislature, within the constraints of correct procedure, with total freedom to amend in any manner it saw fit.
In response to the claim that a constitutional authority to amend provisions had to be distinguished from an unauthorized power to repeal them, Justice Gerald Fitzgibbon cited the Twenty-first Amendment to the United States Constitution as evidence for the fact that amendments need not only add or clarify.
Of course, the repeal of prohibition left the essential character of the U. Constitution unchanged, thus making it a curious example to help legitimate the repeal of due process in the Irish constitution. But the reference underscores the central point in the majority's ruling: distinguishing essential constitutional features from nonessential ones is ultimately an exercise in imponderables. Among the constitutional theorists writing at this time, the one who would have been least surprised by this result was not an Irishman but a German—Carl Schmitt.
While doubtless preoccupied with his own country's rendezvous with constitutional disintegration, he might well have viewed what was happening in Ireland as confirmation of his controversial ideas about the inadequacies of the liberal state.
That the amendment process in Ireland culminated in a result he would have applauded—the transfer of all power to the executive—should not obscure the fact that, in doing so, it provided a compelling demonstration of what Schmitt saw as the fundamental flaw at the heart of constitutional liberalism.
An amendment process functioning in total indifference to itself and its own system of legality was a testament to the blind subordination of substance to form that was the basis of modern constitutionalism, of which, of course, Weimar was exhibit A. Schmitt might have recognized in the opinions of the prevailing justices in Ryan echoes of his positivist adversaries in the twenties. He would have seen the same conflation of parliamentary and popular sovereignty that could sustain the imagination in visualizing the constituent power whenever constitutional change emerged from the legislature.
There is a vast literature that is concerned with constitutional transformation occurring outside of the officially designated procedures set out in constitutional provisions. In this regard, the work of Bruce Ackerman has been critically important. His ongoing We the People project is devoted to the understanding that the people are the source of all legitimate constitutional change, both formal and informal. Sanford Levinson has drawn attention to the affinities between Ackerman's popular sovereignty—based theory of constitutional change and the views of Carl Schmitt.
Sanford Levinson, Transitions, Y ale L. As the German scholar Dietrich Conrad has pointed out, the Enabling Act was considered at the time to be a legitimate use of the amending power, and thus its revolutionary implications in creating unsupervised dictatorial power should not be seen as an example of emergency power.
It thus bears a resemblance to what happened in Ireland. But before departing Ireland, it is important to see how a different court under a different constitution arrived at a very similar result with regard to the amendment issue. The requirement was satisfied when, in , the Fourteenth Amendment was adopted, providing for a right to receive and impart information relating to abortion services lawfully available outside the state.
A bill passed under its authority was submitted to the Court for constitutional review, and, as part of the challenge to its legality, the claim was made that the amendment itself was unconstitutional. It was said to be in direct conflict with the Eighth Amendment, which acknowledges the right to life of the unborn. Imagine for a moment the passage in the United States of the flag-burning amendment, and the sure objection that it violated the guarantee of free speech under the First Amendment, and you have the case that confronted the Irish Court.
Imagine, too, a further claim that, in addition to the allegation concerning a conflict between two provisions, the newer amendment should not be allowed to stand because it repudiates principles of natural justice embodied in the Constitution. This, recall, was the core of Jeffrey Rosen's effort to put into play the idea that if the flag amendment were to be adopted it deserved to be nullified by the Court.
A similar effort was undertaken in Ireland, with greater ease actually, since the natural law commitments of its Constitution were, in contrast with the United States, much more explicitly set out in the language of the document. The counsel for the unborn, as they were called, maintained that the Court could not enforce any provision of a law or amendment that was contrary to natural law. In affirming the supremacy of popular sovereignty, it effectively left unimpeded the people's right to amend the Constitution.
As in the earlier Ryan case, it was the sovereign prerogative that was decisive; the change from one constitution to another, however significant as a historical transformation to real independence, was of no consequence with respect to intraconstitutional transformation through the amendment process.
It mattered not at all that the first transformation was marked by the replacement of parliamentary by popular sovereignty; ultimately the same reasoning dictated the same positivist result. To make clear that this result was not an anomaly somehow driven by the special status of the abortion issue in Irish politics, a trilogy of cases decided in the late nineties, in which the Court waxed worshipfully at the altar of people power, suggests a deeper cause.
If one had to differentiate the voices in the various judicial opinions delivered in these cases, the only distinguishing mark would be the decibel level at which the several justices proclaimed their complete devotion to the demos. The decision is theirs and theirs alone. Another excellent application of this principle may be found in Sri Lanka.
The Constitution expressly provides for the amendment or repeal of any of its provisions or for the repeal of the entire Constitution. In the case of major changes the people must affirm them through a referendum. This is not to say that the outcome in the abortion case was wrong, only that the reasoning in it was instructively deficient. The referendum requirement in the Constitution's amendment provisions enabled the Court to invoke the constituent authority of the people as cover for its inability or unwillingness to engage the threshold question of what precisely an amendment is , or, for that matter, the antecedent question of what a constitution is.
The idea that any duly enacted amendment to the Constitution carried with it the legitimating aura of sovereign authority embodied the brilliant obfuscation of a noble fiction. McDowell ed. If the Irish decisions provided a weak response to Schmitt's critique of proceduralism, then insisting that the validity of a formal constitutional change was conditional on its strict adherence to natural law, as was argued in the dissent in Ryan or in the right-to-life brief in the abortion-information case or in the claims made by Rosen in objecting to the proposed flag amendment, also fails.
By this I mean it would have to show not just that something important has changed but that the change has, in some deep sense, disturbed the fundamentals of constitutional identity. To see how this argument unfolds, we need to go to India. It is here, in India, where the words of Lincoln's first inaugural address take on a special significance.
Whenever they should grow weary of the existing government, they can exercise their constitutional right of amending it, or their revolutionary right to dismember or overthrow it. K ommers et al. It is an imperfect achievement made possible only by the dictatorial ambitions of a politician bearing the two most revered names in modern Indian history. Moreover, it is an achievement that, like the success of Indian democracy itself, seems somehow counterintuitive.
The Indian Constitution, after all, was designed to accomplish the goal of radical social reconstruction. Borrowing also from the Irish experience, the framers included a section in the Constitution devoted entirely to Directive Principles of State Policy, a section that came to assume a place of prominence in subsequent constitutional development that it never attained in its place of origin.
Indeed, the Irish have been a frequent source of inspiration for many Indians, as is amusingly evident in an Indian judge's slightly amended reference to Justice Fitzgibbon's opinion in the Ryan case. If it is not that today, let us strive to make it so by using law as a flexible instrument of social order. Gajendragadkar as quoted in Kesavananda Bharati v. State of Kerala, SC , Add to this effusive embrace of change a legal culture rooted in the British legal tradition, and it is natural to suppose a hostile Indian reception to the notion of implied constitutional limits.
If so, it does not admit of any limitations. Perhaps the answer lies, at least in part, in judicial practice developed in constitutional domains at the core of Indian self-understanding, most prominently the question of secular identity. Thus, in formulating an appropriate constitutional response to a religious presence that is pervasive and deep, Indian judges have proceeded along a path that their U.
At least it helps to understand why a judge might conclude that the Constitution cannot legally be used to destroy itself. The former remains but the latter is subject to change. Press, Because religion in India is so deeply embedded in the existing social structure, indifference to the substance of religious belief is a much costlier indulgence than it is in places where the spiritual and temporal are not so tightly entwined.
As was said in Minerva Mills Ltd. But how to determine what remains and what is subject to change? In its wrestling with the amendment issue, the Indian Supreme Court has struggled mightily with this perplexity. On the one hand, its task has been less difficult than confronting the challenge of religion, where the Court's authority to make this distinction was always more dubiously asserted; on the other hand, its effort has been complicated by the fact that the key cases testing the limits of the amendment power have directly implicated the justices' own institutional self-interest.
A very brief outline of the progression of these cases should be sufficient to pursue the logic of the Court's rather weakly theorized, if boldly formulated, rationale for its chosen path. Unlike the episodic character of the Irish experience, India's history with the amendment problem presents a compelling narrative. Indeed, there are at least two stories one can tell, the first concerning a decades-long political give and take over the place of private property in India, and the second featuring a protracted struggle by the Supreme Court to establish its credibility and independence in the face of repeated attempts to diminish its standing as a significant force in Indian politics.
These stories are tightly entwined and are distinguishable only by the theme one chooses to emphasize. In both accounts they are dominated by the looming presence of Indira Gandhi.
The use of the amendment process to insulate certain issues from judicial oversight began in the early days of the republic, long before Mrs.
Gandhi's ascension to power. In a decision and again in , the Supreme Court upheld the plenary power of Parliament to amend the Constitution over the claim that the process had been used to deprive landowners of fundamental property rights guaranteed under the document. State of Punjab , 40 in which a divided Court announced that duly enacted amendments could not be permitted to render a constitutional right unenforceable. But the intense political reaction to the Court's move left little doubt that something very important had occurred.
State of Rajasthan 1 SCR The use of the amendment process to preclude judicial review of particular issues mainly property began under Mrs. Gandhi's father, Prime Minister Jawaharlal Nehru, although his efforts never aroused the same concerns as did his daughter's in subsequent years. The opinions in the case were noteworthy more for having established a foundation for debating the meaning of constitutional change than for the quality of the judges' own initial contributions, which were, for the most part, underdeveloped.
This became evident in the case Kesavananda Bharati v. State of Kerala , arguably India's most important constitutional decision. Golak Nath had provided Indira Gandhi with a splendid issue for a populist campaign that ended in electoral triumph in War with Pakistan precipitated a declaration of presidential emergency and subsequent nationalization, which, in turn, led to the litigation that ended in the landmark judgment in Kesavananda.
Its massive content approximately pages and numerous crosscutting opinions are not conducive to easy recapitulation. In essence the Court—seven of the thirteen participating judges—affirmed the authority of Parliament to amend constitutional provisions involving fundamental rights, while rejecting its authority to place statutes enacted to implement the Constitution's Directive Principles beyond the power of judicial review.
While relenting on its authority to designate specific provisions as immune from constitutional change, the majority invested the Court with a broader supervisory jurisdiction over the fundamental meaning of the document. Madison , the Court avoided a direct confrontation with the government, yet appreciably strengthened its powers in anticipation of battles ahead. Gandhi a cause and an enemy in her quest for renewed power. The essence of the Court's ruling is in line with William Harris's theoretical reflections on constitutional change.
That is, a Constitutional provision would be fundamental only in terms of some articulated political theory that makes sense of the whole Constitution. And so the era of natural rights in India was short-lived. Should any legitimacy attach to the idea of implied limits to the amendment power, it would not be found in natural rights arguments.
But it has never believed in a single Godhead. It has a perpetually growing pantheon. Its gods are locked in internecine conflict. State of Kerala, supra note 33, at Notice that this rejection of a rights-based bar to first-order constitutional change did not culminate in acceptance of the government's extraordinary argument to the Court that Parliament could do anything it wanted through the amendment power, no matter how revolutionary or destructive.
To be sure, the ghost of Oliver Wendell Holmes returned—and with a vengeance—but only to a small minority of the justices, among whom Justice Y.
A similar sentiment appears in the opinion of Justice S. On June 12, , a high court judge in Mrs. Gandhi's electoral constituency upheld charges against her for the crime of electoral fraud. Two weeks later, faced with the possibility of removal from office, she introduced India's first domestically driven emergency regime, which quickly evolved into a harsh and unremitting dictatorship.
Among its first acts were a series of constitutional amendments that were, shall we say, unusual. One of them, the Thirty-ninth Amendment, prevented any judicial inquiry into the election of the prime minister. Gandhi's claim was Schmittian in the extreme; in essence, the constituent power, as an expression of the sovereign will of the people, was all-embracing and at once judicial, executive, and legislative. It was such an extravagant claim that it accomplished what all previous debate over property-related amendments had failed to do—establish the legitimacy of the unconstitutional constitutional amendment.
Tripathi Priv. This was too much even for the aforementioned Holmesian justice, who perhaps experienced an epiphany, in the face of these events, concluding that the Constitution could indeed be subverted by revolutionary methods, and that constitutional provisions should not, after all, be the vehicle for such change.
While Mrs. Gandhi's election was prudently upheld, the Court decisively repudiated the Thirty-eighth and Thirty-ninth Amendments. In particular, these provisions were a blatant negation of the right of equality and were in sharp contravention of the most basic postulate of the Constitution. Hence, following Kesavananda , they could not stand. Of course, one could question just how meaningful these developments were in light of the unusual circumstances that brought them about.
That is why the last of the cases in this brief summary—involving a government takeover of a failing business—is so important. In , the Court decided Minerva Mills, Ltd.
The amendment represented Mrs. But, the Constitution is a precious heritage; therefore you cannot destroy its identity. One lesson to draw from them might be to follow the Brazilian example and preclude the enactment of constitutional amendments during periods of emergency.
The Constitution of Brazil may not be amended during a state or federal intervention, defense, or siege. It is popularly viewed as a mechanism of self-preservation in a country with a history of authoritarian interventions in the constitutional text.
Hence we should not be surprised to learn that it was the German experience that offered the Indian judges guidance in their extended parrying of Indira Gandhi. But both the judges and the prime minister could find in the person of Carl Schmitt a source of ideas for their conflicting agendas, for that enigmatic theorist is at once the guru of emergency power and the proponent of the notion that there are fundamental principles limiting the amendment power. Indeed, his argument that the amendment power was not an expression or reincarnation of the original constituent power, and thus limited under its original mandate, was incorporated into the jurisprudence of the Basic Law of the Federal Republic.
While never actually invalidating a constitutional amendment, the postwar German Court has declared such an act conceptually possible and has expressly invoked the nation's recent past to affirm that never again would formal legal means be used to legalize a totalitarian regime. See, e. Conrad's work was cited by Indian justices in several of the decisions discussed in this article. There are constitutional provisions that are so fundamental and to such an extent an expression of a law that precedes even the constitution that they also bind the framer of the constitution, and other constitutional provisions that do not rank so high may be null and void, because they contravene those principles.
If proximity to the abyss has a way of concentrating the mind on the essentials of constitutionalism, judicial enforcement of implied limits to the amendment power should not rest solely on reasons fashioned for the dire circumstances of the worst case.
For Schmitt, it was the doctrine of popular sovereignty traceable to the French Revolution that animated his views on the subject, just as it did his defense of executive dictatorship. Thus a constitutional amendment could be subject to nullification to the extent that it was responsible for transforming the document to which it was added into something fundamentally incoherent. Of the raft of reasons adduced by the Indian Court in analyzing the unconstitutional amendment, the one that stands out is a version of the coherence requirement—the need to preserve the Constitution's identity.
If anything, however, it is a more demanding criterion than the German test. Thus the incongruities and inconsistencies that could lead to a finding of constitutional incoherence might only mean that the document's identity has been obscured in a manner that seemingly casts doubt on its fundamental character and commitments. That is certainly the U. Reforming a constitution is, as Walter F. Murphy has pointed out, different from re-forming a constitution.
Thus in Kesavananda , Justice H. J uris. For Murphy, the addition of the Thirteenth and Fourteenth Amendments provided the Constitution with the intellectual coherence it had previously lacked, and in doing so enhanced, rather than undermined, the integrity of its core principles.
The question of constitutional identity is, of course, much more easily asserted than enforced. Given the exceedingly high probability that any such assertion will be vigorously contested, judges are understandably reluctant to enforce it. Thus in the U. Borden , 68 which was in essence a case of political identity in which the Supreme Court refused to say what it was that the republican guaranty clause article 4, section 4 guaranteed.
The same jurisprudential choice to avoid the question of identity underlies the unwillingness to find implied limits to formal constitutional change. Calhoun and the logic of Luther v. The latter is the extraordinary power to form a constitution — the immediate expression of the nation and thus its representative. It is independent of any constitutional forms and restrictions.
The former is the power created by the constitution, an ordinary, limited power, which functions according to the forms and mode that the nation grants it in positive law [34]. Hence, contrary to constituted powers , constituent power is free and independent from any formal bonds of positive law created by the constitution. Its will is always legal. The conceptual relationship between constituent and constituted powers is that of subordination.
Constituted powers are legal powers competence derived from the constitution and are limited by it. They owe their existence to the constituent power and depend on it; thus, constituent power is superior to them.
In contrast to constituted power , constituent power is unlimited — at least in the sense that it is not bound by previous constitutional rules and procedures [38]. On that account, the distinction between constituent and constituted powers is imperative for any investigation regarding possible limitations on the amendment power, since if this power is conceptualised as a constituted power , it is subordinated to the constitution, whereas if it is conceptualised as constituent power , then it should be regarded as unlimited and unbound by prior constitutional rules [39].
However, as demonstrated in the next section, this classification seems extremely thorny when one has to assess the amendment power. The constituent power establishes the constitution, which in turn regulates the ordinary constituted powers , such as the executive, legislative, and judiciary.
At the backdrop of this story, the amendment power is an extraordinary authority [42]. The reason for that is because, as Stephen Holmes and Cass R. It inhabits a twilight zone between authorizing and authorized powers.
This is the prevailing approach of American constitutionalism [47]. Several arguments support this approach:. Supremacy argument: constituted powers are bound by the constitution. Therefore, this power differs from and superior over ordinary constituted powers and must be of a constitutive nature.
Not only can it modify other constituted powers, but it may also, arguably, change its own boundaries since it possesses Kompetenz-Kompetenz. Procedural argument: most constitutions provide different procedures for ordinary legislation and constitutional amendments, which emphasize the exceptional process of constitutional amendment [49]. This distinction strengthens the argument that the amendment procedure is not an ordinary constituted power ; but different from and more unique than ordinary law making [50].
If constituent power produces constitutional laws that govern constituted power s, then amending those constitutional laws is an exercise of constituent power. Amending a constitutional provision creates the same legal product as writing a new provision. Therefore, amending the constitution is arguably an exercise of a power similar to that which created the constitution in the first place — constitute power :. On the other hand, the mere stipulation of an amendment procedure points to its instituted and thus constituted — rather than constituent — nature.
True, it has a remarkable capacity to reform governmental institutions; yet it is still a legal competence defined in the constitution and regulated by it [52]. Even if one applies here the concept Kompetenz-Kompetenz, the constituent power declares the constituted power competent to define its competences, but only within the limits set in the constitution [53].
If all powers derive from the constitution, then the amending power must be a constituted power just like the legislative, judicial, or executive powers [54].
As a legally defined power originating in the constitution, it cannot ipso facto be a genuine constituent power. As a result, the amending power is multi-faced. It carries dual features of both constituent and constituted powers , hence the question of its nature is a knotty on. Since this power does not fit comfortably into any of these categories, it should neither be regarded as another form of constituted power nor equated with the constituent power ; it is a sui generis power [57].
The first is a power that is exercised in revolutionary circumstances, outside the laws established by the constitution, and the latter is the legal power exercised according to rules established by the constitution.
This distinction between original and derived constituent powers was developed during the debates of the French National Assembly on the Constitution, albeit with different terminology [60]. At the assembly, debates took place on how the Constitution ought to be amended in light of the fragility of the constitutional project.
The adopted process was that the Constitution would be unamendable for ten years, after which amendments could take place through an Assembly of Revision, and after approval of three successive legislatures [61].
During the debates of the National Assembly, some argued that the Assembly could not limit or even procedurally frame the constituent power , while others sought to minimise the likelihood of future constitutional changes. Frochot proposed that there be a differentiation between partial and total change to the Constitution, believing that each involves a fundamentally different power.
Thus, he proposed a certain procedure for partial change and another more complex for a total change [62]. While his proposal was rejected, the distinction he made allowed others to justify the ability to limit and frame potential constituent power without forfeiting the idea of an unlimited constituent power. Barnave explained that the total change of the Constitution could not be predicted or controlled by the Constitution, because it is an unlimited power belonging inherently to the nation.
However, the possibility of amending the Constitution is of a somewhat different nature, which may be limited and circumscribed. Explaining this special, yet legally defined, power, Oudot wrote that some constitutions have organized aside the constituted power, a regular constituent power ; they have settled the form by which the nation could change its political mechanism [64].
As Claude Klein explains, the original constituent power is the power to establish a new legal order ordre juridique nouveau. It is an absolute power, which may set procedural and substantive limits for the exercise of amendments. The derived constituent power acts within the constitutional framework and is therefore limited under the terms of its original mandate [65].
According to the formal theory, original and derived constituent powers are distinguished by the form of their exercise. Constituent power is exercised outside the forms, procedures, and limits established by the constitution. On the other hand, a juridical concept of constituent power is exercised in according to rules established by the constitution [67]. The formal theory can be summarised as follows: original constituent power is exercised in a legal vacuum, whether in the establishment of the first constitution of a new state or in the repeal of the existing constitutional order, for instance in circumstances of regime change [68].
In this theory, the nature of the original constituent power is extra-legal, a pure fact. This is traditional positivist approach as expressed by Hans Kelsen, who does not tackle the question of the constituent power , but rather claims that the question of the basic norm or obedience to the historically first constitution is assumed or presupposed as a hypothesis in juristic thinking [69].
In contrast, derived constituent power is a constraint power that acts according to the formal procedures as established in the constitution. Similarly, the exercise of the derived constituent power may cover the entire constitution [71]. For the substantive theory, the main criterion distinguishing between original and derived constituent powers is the different scope of their ability to influence the substance of the constitution [72].
The amendment process is designed for the textual change of constitutional provisions, but not of fundamental political decisions that form the substance of the constitution. Thus, for Schmitt, an amendment cannot annihilate or eliminate the constitution. These matters are for the constituent power of the people to decide, not the organs authorized to amend the constitution. Thus, an amendment that transforms a state that rests on the power of the people into a monarchy, or vice versa , would be unconstitutional [73].
In order for the formal and substantive theories to coexist, the amendment power needs to be comprehended in terms of delegation. Delegation affords the legal framework, even if not always consciously articulated, to rationalize this state of affairs surrounding the nature of the amendment power. When the amendment power amends the constitution, it uses a legal competence delegated to it by the primary constituent power. The amendment power is a delegated authority , where the delegatus exercises a function of a constituent authority.
But why does this infer limitability? The one who delegates authority the original constituent power is the principal, while the one whom the authority is delegated to the amendment authority represents the agent [77]. The amendment power is a delegated power exercised by special constitutional agents. When the amendment power amends the constitution, it thus acts per procurationem of the people, as their agent [78].
Having a principal-agent relationship, the delegated amendment power is subordinated to the principal power from which it draws its legal competency. Hence, contrary to the original constituent power , the delegation of the amendment power inherently entails certain limitations, as the legal framework of delegation is by itself characterised by constraints [79]. If the amendment power is delegated, it acts as trustee. Trustee of whom? Delegation and trust are conceptual keys to the nature and consequently the scope of amendment powers.
Due to its nature, the trustee is always conditional and thus the fiduciary amendment power necessarily entails limits. As Akhil Amar has argued, within Art. V of the U. Constitution, the people delegated the amendment power to ordinary government, and limitations on the amendment power, as stipulated in Art. V, exist only when it is exercised by delegated powers following from the people [82].
However, one may claim that even though the amendment power is delegated, it is still limitless since it represents the unlimited sovereign. The representation of an unlimited constituent power must logically result in a similar unlimited amendment power. Such an argument should be rejected. This is precisely the distinction between original and derived constituent powers.
How does the theory of delegation manage to integrate the formal and substantive theories? First , delegation theory is not restricted to the substance of amendments. The amendment power must obey the procedure as prescribed in the constitution. Similarly, it is required to observe those explicit not necessarily procedural, but also substantive limits set upon it, as formally stipulated in the constitution [85].
Explicit limits on constitutional amendments express the idea that exercise of the amendment power — established by the constitution and deriving from it — must abide by the rules and prohibitions formally stipulated in the constitution. Second , delegation theory is not restricted to form, but also concerns substance. The delegated amendment power, as a rational understanding of that delegation, must be substantively limited, whether these limits are explicitly stated in the constitution or not.
Therefore, rather than being exclusive, the formal and substantive theories distinguishing between the constituent power and amendment power mutually reinforce one another. Due to the complexity of the concept of the amendment power and its relations with the constituent power , various versions have developed in the literature to describe these concepts. In the American literature, it was often common to distinguish between framing power and amending power [86]. In order to elude any confusion, some plainly reject the use of the term constituent to describe the amendment power [90].
I agree that the oft-used terms are imprecise. Both the constitution-making and constitution-amending powers are constitutive in the sense that it these are powers to constitute constitutional rules. Nonetheless the two are not identical.
As for the constitution-making power, I reject the use of the term original constituent power. Additionally, constitution-making takes many different forms. Some constitutions were formed in revolutionary circumstances, breaking the previous constitutional order. Others were constituted through international efforts or imposed by foreign and external forces, such as the cases of Japan and Germa ny after or post Iraq [93].
Often, the constitution-making process is exercised in continuity with existing laws or in accordance with pre-determined rules Post Eastern Europe and South Africa [94]. Finally, the exercise of constituent power itself requires a certain representational form [95].
Since constituent power is never purely original , I use the term primary constituent power instead. It is primary not only because it is the initial action, but also because it is principal in its relations with the amendment power.
Congruently, instead of derived constituent power , I use the term secondary constituent power to describe the amendment power. It is secondary not merely because it necessarily comes chronologically after the constitution-making process, but because it is subordinated to the primary constituent power and inferior to it.
To sum up the argument thus far, the amendment power is a constitutional power delegated to a certain constitutional organ.
As a trustee, it possesses only fiduciary power; hence, it must ipso facto be intrinsically limited by nature. Put differently, a vertical separation of powers exists between the primary and secondary constituent powers.
As in the horizontal separation of powers, this separation results in a power-block. The holder of the amendment power may be restricted from amending certain constitutional subjects. Identifying the amendment power as a delegated authority is the first step in understanding its limited scope.
I now move on to explain how — according to this theoretical presupposition — the amendment power is limited. Based upon the previous section, this section provides the theoretical ground that elucidates various explicit and implicit limitations on the amendment power.
The idea of constitutional entrenchment is debated extensively in the literature [96]. For Kelsen, a norm could be declared as unamendable, yet such a declaration cannot prevent the loss of its validity by a loss of efficacy []. Moreover, since a provision prohibiting any amendments is not invalid by its very nature, in the case of unamendable provisions, it is not legally possible to amend the protected provisions [].
Indeed, nowadays unamendable provisions are commonly considered valid []. The theory hereby presented supports the validity of unamendable provisions, but relies on questions concerning the sources of constitutional norms. The secondary constituent power which is a delegated power may be restricted by the primary constituent power from amending certain principles, institutions, or provisions.
The motives for such restrictions and the aims those are designed to accomplish vary []. What is clear is that the amendment power, which is established by the constitution and subordinate to it, is exercised solely through the process established within the constitution.
It is bound by any explicit limitations that appear in the constitution, if those are set by the primary constituent power. Viewed from the perspective of the formal theory, explicit unamendability reflects the idea that any exercise of the amendment power must abide by the rules and prohibitions stipulated in the constitution, including substantive limits []. But unamendable provisions may simply derive from constitutional compromise and contingency and cover a wide range of topics, not necessarily the basic principles of the constitutional order [].
These cannot be supported by the substantive theory. The theory of delegation explains all types of unamendable provisions. The secondary constituent power , as a delegated power, acts as a trustee of the primary constituent power. The delegated amendment power is limited according to the conditions stipulated in the constitution, including various substantive limits.
What are the legal implications of a conflict between a new constitutional amendment and an unamendable provision, according to the delegation theory? Unamendable provisions create a normative hierarchy between constitutional norms.
Just as the constitution prevails over an ordinary law, a constitutional provision established by the primary constituent power prevails over constitutional provisions established by the secondary constituent power.
When resolving conflicts between constitutional provisions unamendable provisions contrasted with later amendments , the paramount factor is not their chronological order of enactment lex posterior derogat priori , but rather, the sources of these constitutional norms. Thus, the constituent power is divided conforming to a hierarchy of powers — primary and secondary — governed by the principle lex superior derogat inferiori ; the constitutional rule issued by a higher hierarchical authority prevails over that issued by a lower hierarchical authority.
Just as ordinary legislation retreats when it conflicts with constitutional norms, so do constitutional amendments retreat when they conflict with unamendable provisions []. In other words, since the primary constituent power is a superior authority to the secondary one, the normative creations of the latter should withdraw when conflicting with that of the former []. Unamendable provisions may lose their validity when they face a conflicting valid norm that was formulated by the same authority.
A unique difficulty is arising when an amendment stipulates by its own terms that it or other provisions are unamendable. This is not a hypothetical scenario. The original French unamendability of the republican form of government was inserted into the Constitution through an amendment in , stimulating lively scholarly debate [].
In , the original proposed 13 th Amendment to the U. The distinction between primary and secondary constituent power provides a relatively unassuming solution to this conundrum. As only the primary constituent power can limit the secondary constituent power , unamendable amendments lose their validity when they face a conflicting norm formulated by the same authority.
Accordingly, provisions created by the amendment power could subsequently be amended by the amendment power itself.
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