Constraints on Constitutional Amendment Powers

Abstract

There exists a widespread practice of constraining constitutional amendment powers through rules or standards that determine the validity of constitutional amendments. These rules and standards arise both from constitutional texts and judicial decisions. This practice raises significant concerns about the distribution of power both between generations and between political actors. The fundamental question is whether the values served by constraints on amendment powers can justify a contemporary majority being subject to a past generation or a judicial elite. The literature mostly fails to address this question directly, focusing instead on the quantum of change introduced by constitutional amendments. Eliding different understandings of the word ‘constitutional’, problematic amendments are identified by the extent to which they depart from the moral value of constitutionalism, or the extent to which they go beyond what is claimed to be a proper conceptualisation of constitutional amendment, or by some combination of these approaches. In this chapter, I suggest a different approach. Four cross-cutting distinctions establish a typology of ways in which the power of constitutional amendment can be constrained. This typology focuses attention on how constraints disempower contemporary majorities in favour of past generations or judicial elites, thus providing a baseline against which we can assess whether those constraints are justified. Constraints that seek to serve majoritarian values pose the relatively simple question of whether the detriment to majoritarian values in the here and now is justified by the protection of majoritarian culture over the medium to long term. Constraints that prevent change to the fundamental features of the polity are unjustified: there can be no objection to the current generation using constitutional processes to transform its polity. Constraints that seek to preserve counter-majoritarian values are the most difficult to assess, raising as they do a competition between the incommensurable values of majoritarian democracy and the protection of minorities from unjust laws.