Unconstitutional Constitutional Amendments and the Stratification of Powers

Abstract

The subject of the article is the idea of unconstitutional constitutional amendments. The essay does not concern any specific legal order but takes the perspective of a general theory/philosophy of law. The study is divided into two parts. The first part briefly describes the theory and practice of applying the idea of unconstitutional constitutional amendments. The second part reveals and analyzes the basic assumptions of the theory of unconstitutional constitutional amendments: “the assumption of the stratification of powers” and “the essentialist assumption.” As a result of the analysis, it is concluded that on the grounds of democracy and constitutionalism the inadmissibility of amendments to the constitution should be linked not to the difference between the establishment of the constitution and its amendment, but to the difference between the degree of democratic legitimacy of the indicated law-making activities. Therefore, the article also formulates a postulate that the admissibility of declaring the unconstitutionality of constitutional amendments should be limited to cases where the amendments were adopted in a procedure with an evidently lower degree of democratic legitimacy.