Unconstitutional constitutional amendments as constitutional politics

Constitutional amendments are central to the study of comparative constitutionalism. Amendment rules and processes, as well as their effects on the constitutional order, have been the subject of much scholarship. Of particular interest to constitutional scholars in recent years are the theory and practice of unconstitutional constitutional amendments (UCA). The notion of UCA has diffused globally from its political foundations in France and the United States, to its doctrinal origins in Germany, to its practical application across the globe, including in Argentina, Austria, Greece, Hungary, Portugal, South Africa, South Korea, Switzerland, and Tanzania. Constitutions may place both explicit and implicit limits on amendments. Article 79(3) of the German Constitution, for instance, makes the following provisions unamendable: the democracy principle (provided in Article 20), the federal structure, and the principle of human dignity (provided in Article 1). Such explicit limitations in the constitutional text are sometimes referred to as eternity clauses – they ensure that fundamental principles endure for as long as the constitution itself. More controversial, through increasingly common, are implicit limits on constitutional amendments. Implied limitations are usually declared by courts. Through a heightened form of judicial review, judges may find that constitutional amendments violate core constitutional principles such as the separation of powers or judicial independence. This is what transpired in the Indian Supreme Court’s landmark Kesavananda judgment (1973), which held that amendments could not violate the Constitution’s “basic structure” and inspired many other apex and constitutional courts to follow suit. Indeed, courts around the world have held certain constitutional amendments as unconstitutional on the grounds that the impugned amendments altered fundamental aspects of the existing constitution.