Interpreting unconstitutional constitutional amendments

This chapter examines the practice of judicial interpretation around unconstitutional constitutional amendments (UCA). Judges today are called upon to adjudicate the scope of unamenable provisions (eternity clauses) within the constitutional text, to determine the appropriate procedures or thresholds required to enact constitutional amendments, and to exercise constitutional judicial review over duly enacted amendments that may violate a constitution's implicit basic structure or material core. Drawing from a range of case studies, we aim to explain how courts have approached these interpretive exercises, to illuminate their reasoning, and to discuss the broader effects of these judgments on constitutionalism in their respective countries. While constitutional unamendability initially seems like a mechanism to almost hermetically protect certain principles from constitutional change, a closer look reveals that unamendability and stagnation are far from synonymous. Unamendability, whether in its explicit or implicit form, and when judicially enforced by courts, still allows for constitutional change, even of unamendable principles.