Amending the Unamendable: The Case of Article 20 of the German Basic Law

Abstract

The power which has the right to approve a constitutional norm is called pouvoir constituant. The original pouvoir constituant which drafts a new constitution is hierarchically higher than the derived one which has only the right to amend an existing constitution in the framework allowed by the original one. In other words, parliaments who want to amend the constitutions are limited by the unamendable provisions. In 1968, Parliament of Germany added the 4th paragraph (which provides German citizens the right to resist any person seeking to abolish the constitutional order) to Article 20 which had been rendered unamendable by the Article 79 of the Basic Law of Germany during the drafting process in 1949. Consequently, although this newly added paragraph is present in an unamendable article, any derived pouvoir constituant can amend, change or annul it because it is not approved by an original pouvoir constituant.