The London School of Economics and Political Science Unconstitutional Constitutional Amendments: A Study of the Nature and Limits of Constitutional Amendment Powers Yaniv Roznai A thesis submitted to the Department of Law of the London School of Economics for the degree of Doctor of Philosophy. London, February 2014 ~ 1 ~ DECLARATION I certify that the thesis I have presented for examination for the PhD degree of the London School of Economics and Political Science is solely my own work other than where I have clearly indicated that it is the work of others. The copyright of this thesis rests with the author. Quotation from it is permitted, provided that full acknowledgement is made. This thesis may not be reproduced without my prior written consent. I warrant that this authorisation does not, to the best of my belief, infringe the rights of any third party. I declare that my thesis consists of 98,746 words. I can confirm that earlier versions or parts of certain sections (Ch. 1, sec.I; Ch. 2, sec. II; Ch.3; Ch. 4, sec. I; Ch.7, sec. IIA.B, IIIB; Ch. 8, sec. IIIB) were previously published in ‘Legisprudence Limitations on Constitutional Amendments? Reflections on the Czech Constitutional Court’s Declaration of Unconstitutional Constitutional Act’, 8(1) Vienna Journal on International Constitutional Law (2014), 29-57; ‘Unconstitutional Constitutional Amendments – The Migration and Success of a Constitutional Idea’, 61(3) American Journal of Comparative Law (2013), 657-719; ‘The Migration of the Indian Basic Structure Doctrine’, in Judicial Activism in India – A Festschrift in Honour of Justice V. R. Krishna Iyer (Malik Lokendra ed., Universal Law Publishing Co., 2012), 240-262; ‘The Theory and Practice of ‘Supra-Constitutional’ Limits on Constitutional Amendments’, 62(3) International & Comparative Law Quarterly (2013), 557-597; ‘Book Review – Dawn Oliver and Carlo Fusaro (eds), How Constitutions Change: A Comparative Study’, 75(5) Modern Law Review (2012) 945–950; ‘An Unconstitutional Constitutional Amendment - The Turkish Perspective: A Comment on the Turkish Constitutional Court’s Headscarf Decision’, 10(1) International Journal of Constitutional Law (2012), 175-207 (with Serkan Yolcu); ‘Article Review, Unconstitutional Constitutional Amendments in the Case Study of Colombia’, ICONnect Blog (October 17, 2013). I can confirm that my thesis was copy edited for conventions of language, spelling and grammar by Bianca Jackson. ~ 2 ~ ACKNOWLEDGMENTS This work traveled an itinerant path to submission, with different sections written in London, Tel Aviv, and New Jersey. Along the way I have benefited from the comments, proposals, and criticism of many colleagues, whom I gratefully acknowledge here. First, and foremost, I wish to thank my supervisors Martin Loughlin and Thomas Poole who were my lighthouses, guiding me and advising me through this journey (always wisely!). They were tremendously devoted and supportive, more than I could have ever imagined. I also owe many thanks to my upgrade examiners, Grégoire Webber and Michael Wilkinson, who tested my thinking and arguments, making them much clearer. Also, at the LSE, I wish to thank my doctoral friends Aleks Bojovic, Sinéad Agnew, Dean Knight, Magen Pearson, Sally-Anne Way, Paraskevi Boukli, and Hedi Viterbo, as well as members of the academic staff – Devika Hovell, Jo Murkens, Jan Komárek, Jacco Bomhoff, Mara Malagodi, Linda Mulcahy and the Doctoral Programme Administrator – Rachel Yarham. Their advice and assistance along the way is more than appreciated. LAPA at Princeton University has been a terrific place to research as a visiting student research collaborator. I thank Kim Lane Scheppele and Leslie Gerwin for their generosity, support, and discussions. It is also where I benefited from useful deliberations with Alexander Somek, Gábor Halmai, Lisa Miller and Lawrence Sager, all of whom I owe my gratitude. In the broader academic world, this work has benefited from the assistance, remarks, and proposals of many people (too many to mention all), and in particular Adam Shinar, Aharon Barak, Alon Harel, Amnon Rubinstein, Avinash Govindjee, Carlos Bernal- Pulido, Claude Klein, David Landau, Dorit Rubinstein Reiss, Elisenda Casanas Adam, Hillel Sommer, Ittai Bar-Siman-Tov, Joel Colón-Ríos, Liav Orgad, Michael Dorf, Michael Freitas Mohallem, Moran Kendelstein-Heina, Moshe Cohen-Eliya, Nathan Brown, Nir Yamin, Ozan Varol, Radim Dragomaca, Richard Albert, Rivka Weill, Serkan Yolcu, Silvia Suteu, Suzie Navot, Thomaz Pereira, Vicki Jackson, Virgilio Afonso da Silva, William Parlett and Yoram Rabin. I thank them all. Various sections and ideas of this thesis were presented at numerous conferences, workshops, and colloquiums. I would like to express my gratitude to the hosts and participants of the Edinburgh Constitutional Law Discussion Group - PhD Dialogue: ‘Exploring the Eternal Constitution: Perspectives on Constitutional Entrenchment’ (The University of Edinburgh, February 2014); Haifa Faculty of Law Staff Seminar (University of Haifa, January 2014); Edinburgh Postgraduate Law Conference (The University of Edinburgh, December 2013); the Law in a Changing Transnational World (Tel Aviv University, October 2013); the 3rd Annual Workshop on International and Comparative Law (Washington University, St. Louis, March 2013); LSE 3rd Year PhD Seminar (LSE, November 2012); the 2013 Law and Society Annual Conference (Boston, May 2013); Loyola Annual Constitutional Law Colloquium (Loyola Chicago, November 2012); the 2nd American Society of Comparative Law Younger Comparativists Committee ~ 3 ~ Conference (Indiana University, April 2013); LSE 2nd Year PHD Workshop (LSE, May 2012); Yale Law School Doctoral Scholarship Conference (Yale, November 2012); Atlas Agora PhD Workshop (Bar-Ilan University, June 2012); American Society For Comparative Law Annual Works-in-Progress Workshop (Princeton University, February 2012). Some ideas and sections previously appeared in the Vienna Journal on International Constitutional Law; American Journal of Comparative Law; International & Comparative Law Quarterly; Modern Law Review; International Journal of Constitutional Law; and the ICONnect blog. I thank the editors and reviewers for any comments and suggestions that have surely challenged my thinking and enhanced my arguments. For a generous financial assistance I owe many thanks to the LSE PhD Scholarship and the Modern Law Review scholarship. I thank Marjorie Kaufman and Benjamin Rosendahl for translations from German, and Bianca Jackson for proofreading this thesis. Last but not least, I wish to thank my family: my parents Zvika and Tali, my wife Avital, and baby girl Ella. They all gave me the love, support, and energy that enabled me to do what I like most… this thesis is dedicated to them. London & Tel Aviv, February 2014 ~ 4 ~ ABSTRACT This research project stems from a single puzzle: how can constitutional amendments be unconstitutional? Adopting a combination of theoretical and comparative enquiries, this thesis establishes the nature and scope of constitutional amendment powers by focusing on the question of substantive limitations on the amendment power, looking at both their prevalence in practice and the conceptual coherence of the very idea of limitations to amendment powers. The thesis is composed of three parts. The first part is comparative. It examines substantive explicit and implicit limitations on constitutional amendment powers through manifold descriptions of a similar constitutional phenomenon across countries, demonstrating a comprehensive pattern of a constitutional behaviour. This process is theory-driven, and the second part of the thesis constructs a general theory of unamendability, which explains the nature and scope of amendment powers. The third part explains how judicial review of amendments is to be conceived in light of the theory of unamendability, and further assesses the possible objections to the theory of unamendability. The theory of unamendability identifies and develops a middle ground between constituent power and pure constituted power, a middle ground that is suggested by the French literature on ‘derived constituent power’. Undergirding the discussion, therefore, is a simple yet fundamental distinction between primary constituent (constitution- making) power and secondary constituent (constitution-amending) power. This distinction, understood in terms of an act of delegation of powers, enables the construction of a theory of the limited (explicitly or implicitly) scope of secondary constituent powers. This distinction is supplemented by a further one, between various shades of secondary constituent powers along a ‘spectrum’, a theoretical construct that links amendment procedures to limitations on amendment powers. The theory of unamendability explicates the limited nature of amendment powers and the practice of judicial review of amendments, thus clarifying the puzzle of unconstitutional constitutional amendments. ~ 5 ~ TABLE OF CONTENTS Chapter 1: Introduction I. The Meaning and Importance of Constitutional Amendments II. Unconstitutional Constitutional Amendments III. Research Methodology IV. An Outline PART I. LIMITATIONS Chapter 2: Explicit Limitations I. Unamendable Provisions II. Origins and Development III. Examining Unamendable Provisions A. Structure B. Content C. Characteristics 1. Preservative 2. Transformative 3. Aspirational 4. Conflictual 5. Bricolage IV. Conclusion Chapter 3: Implicit Limitations I. The Genesis of the Theory of Implicit Limitations II. The Indian ‘Basic Structure Doctrine’ III. The ‘Basic Structure Doctrine’: A Tour d’Horizon A. Bangladesh: Implicit Limitations B. Pakistan: Implicit Limitations Without Judicial Enforcement C. Africa 1. Kenya – Acceptance of the Doctrine 2. South-Africa: Towards Acceptance? 3. Tanzania – One Step Forward, Two Steps Back? D. South-East Asia 1. South Korea, Japan, and China – Voices from Academia 2. Taiwan and Thailand – Recognition 3. Sri Lanka, Malaysia, and Singapore: Rejection E. Central and South America 1. Argentina – A Limited Constituent Assembly 2. Belize – Basic Structure Doctrine 3. Colombia – Constitutional Replacement Doctrine 4. Peru – Principios Juridicos and Valores Democraticos Basicos IV. Conclusion ~ 6 ~ PART II. TOWARDS A THEORY OF UNAMENDABILITY Chapter 4: The Nature of Amendment Powers I. Constituent Power and Constituted Power II. The Amendment Power as Sui Generis III. The Secondary Constituent Power A. The Distinction Between ‘Original’ and ‘Derived’ Constituent Powers B. The Formal Theory C. The Substantive Theory D. Integration: A Theory of Delegation E. Terminological clarifications 1. Primary and Secondary Constituent Powers 2. Power and Authority IV. Conclusion Chapter 5: The Scope of Amedment Powers I. Explicit Limits A. The Validity of Unamendable Provisions B. An Unamendable Amendment? C. Amending Unamendable Provisions II. Implicit Limits A. Foundational Structuralism B. Hierarchy of Constitutional Values C. Constitutional Identity D. Textualism III. Conclusion Chapter 6: The Spectrum of Amendment Powers I. The Re-emergence of Primary Constituent Power A. Unamendability and Primary Constituent Power B. Conceptions of Primary Constituent Power 1. Immanent Conception 2. Transcendental Conception 3. Primary Constituent Power and Demcoracy II. The Constitutionalisation of Primary Constituent Power A. The Fallacy of Prescribed Constitution-Making Procedures B. We The ‘Limited’ People? III. The Spectrum of Amendment Powers A. Strong and Weak Constitutional Amendment Powers B. Linking Amendment Procedures and Unamendability IV. Conclusion PART III. IMPLICATIONS Chapter 7: Judicial Review of Constitutional Amendments I. The Rationales Behind Judicial Review of Constitutional Amendments A. Separation of Powers B. The Essence of Judicial Duty C. The Rule of the Constitution D. The Supremacy of the Constitution ~ 7 ~ E. Political Process Failure II. Legitimacy of Judicial Review of Constitutional Amendments A. Authority to Review Constitutional Amendments B. Existence or Absence of Unamendable Provisions C. Different Procedures for Constitutional Amendments III. Exercising Judicial Review of Constitutional Amendments A. Interpretation of Constitutional Amendments and of Unamendable Principles 1. Identification of Unamendable Principles or Rules 2. Developing a Theory of Unamendable Principles 3. Identifying the Prohibition 4. Interpreting the Constitutional Amendment B. Standard of Review 1. Minimal Effect Standard 2. Disproportionate Violation Standard 3. Fundamental Abandonment Standard C. Judicial Restraint IV. Conclusion Chapter 8: Assessing Objections to Unamendability I. General Objections to Unamendability A. The ‘Dead Hand’ Objection B. The Revolutionary Means Objection II. Objections to Implicit Limitations A. The Expressio Unius est Exclusio Alterius Objection B. Reply: Reductio ad Absurdum III. Objections to Judicial Review of Constitutional Amendments A. The Logical Subordination Objection B. The Undemocratic Objection C. The Enhancing Judiciary’s Power Objection IV. Conclusion Chapter 9: Conclusion I. A Theory of Unamendability II. Ramifications for Future Research III. Solving the Paradox Appendix: Explicit Substantive Limitations on Constitutioinal Amendments Bibliography ~ 8 ~ CHAPTER 1: INTRODUCTION I. THE MEANING AND IMPORTANCE OF CONSTITUTIONAL AMENDMENTS This thesis concerns the nature and scope of the power to amend constitutions. ‘Constitution’, in this thesis, is used to denote the narrow sense of the term, i.e. the cluster of supreme principles and rules, typically set in a written legal document (or a set of such documents), which establish and regulate the state’s basic institutional arrangements and practices and express the nation’s most enduring values.1 Not every state that has a constitution (in that sense) is a constitutional state. Some constitutions are façade/sham constitutions, in that they exist for ‘cosmetic’ purposes only and have no effect in reality. Others are in line with the political reality but do not impose binding rules upon it; on the contrary, they reinforce governmental power.2 Thus, this thesis focuses on constitutional systems in the modern context of ‘constitutionalism’. 3 Constitutionalism is nowadays commonly identified by certain conditions, such as: the recognition of the people as the source of all governmental authority; the constitution is supreme law (in the sense that it carries the highest normative status within the legal hierarchy); the constitution regulates and limits the power of government; demanding adherence for the rule of law and respect for fundamental rights.4 It also focuses on national constitutions rather than state constitutions within a Federal system due to the important theoretical distinctions between the two.5 Constitutions change with time. Such change can take place in various ways. It can occur outside of constitutional law, in the social sphere, for instance ‘by gradually shifting the rank and importance of constitutional factors … and norms’.6 Constitutions may also be modified according to a procedure stipulated within them. This is the constitutional amendment procedure, by which textual changes to a constitution may occur.7 By the term constitutional amendment,8 I refer to formal constitutional amendments 1 For wide and narrow senses of constitutions, see Perry (2001, 103); Tully (2002, 204-5); Elkins, Ginsberg and Melton (2009, 38-51). 2 See generally Loewenstein (1972, 174); Sartori (1962, 853); Murphy (1993A, 8-9); Law and Versteeg (2013, 863). 3 McIlwain (1975, 132). 4 See, for example, Henkin (1994, 40-42); Grimm (2010B, 9). 5 See Saunders (2010-2011, 853). 6 Smend (2002, 248). 7 Schwartzberg (2009, 5). ~ 9 ~ enacted through the amendment procedure and not to any constitutional changes.9 Of course, important constitutional changes may also take place outside of the formal amendment process,10 for instance, through judicial interpretations or practice.11 Some have claimed, for example, that certain judicial interpretations of the U.S. Constitution are better viewed as amendments.12 Indeed, a modification of a constitutional text’s meaning may often carry a greater effect than its formal modifications. 13 Nonetheless, formal constitutional amendments remain an essential means of constitutional change.14 For some, such as Georg Jellinek, the issue of constitutional amendments is less interesting than that of transformation, which occurs outside of the constitutional text.15 However, as this thesis demonstrates, constitutional amendments raise imperative questions about constitutional theory and are far from being tedious. The modern phenomenon of constitutionalism emerged in the late years of the eighteenth century, first in the North American colonies and then in Europe.16 In North America, the first state constitution – of Virginia – did not include any amendment provision. However, between the years 1776 and 1783, great advances occurred in constitutional design as state constitutions provided special amendment procedures.17 Indeed, soon after the Declaration of Independence, six of the first thirteen constitutions included amendment provisions.18 At the Federal level, from the commencement of the 1787 Constitutional Convention, it was clear that it would be necessary to include within the Constitution an amendment provision. The ‘Virginia Plan’, introduced by Edmund Randolph, contained a provision allowing for amendments ‘whensoever it shall seem necessary’. When doubts were raised as for the need to include an amendment provision, George Mason replied that ‘amendments therefore will be necessary, and it will be better to provide for them, in an easy, regular and Constitutional way than to trust to chance 8 Earlier constitutional literature drew a distinction between major and minor constitutional alterations, calling the former revisions and the latter amendments. See Willoughby (1921, 128); Lutz (1994, 356). I use amendments to describe any formal changes to the constitution, whether major or minor. 9 See, for example, Oliver and Fusaro (2011); Contiades (2012). 10 There is a great deal of work regarding constitutional change outside of the formal amendment process. See mainly the project of Ackerman (1991); Ackerman (1995, 63); Ackerman (2000A). 11 Llewellyn (1934, 1); Strauss (2000-2001), 1457. 12 Coudert (1904, 331); Levinson (1995B, 33). 13 Grimm (2011, 27). 14 Vermeaule (2006, 229). 15 Jellinek (2002, 54). 16 Henkin (1988-1989, 1023). 17 Loughlin (2010, 280-81). 18 Delaware Const. (1776), Pennsylvania Const. (1776), Maryland Const. (1776), Georgia Const. (1777), Vermont Const. (1777), and Massachusetts Const. (1780). See Martig (1937, 1254). ~ 11 ~