Necrocracy or Democracy? Assessing Objections to Constitutional Unamendability

Abstract

Unamendability is a growing trend in global constitutionalism. Yet, unamendability, as a constitutional mechanism, raises various challenges and objections. Mainly, by perpetuating certain constitutional rules, values and institutions, unamendability exacerbates the ‘dead hand’ of the past, and by restricting all constitutional possibilities available to the people to revise their constitution, unamendability is seen as undemocratic and dangerous as it encourages extra-constitutional and revolutionary means in over to modify unamendable principles. Furthermore, the judicial enforcement of unamendability grants courts vast powers over other governmental branches, turning the judiciary into the final arbitrator of society’s values. This chapter identifies and analyses the main theoretical, practical and textual challenges to unamendability. It demonstrates that unamendability is a complex mechanism which ought to be applied with great care. Yet, it also argues that if the theory of unamendability is correctly construed as a mechanism which reserves a constitutional space for the decision-making of ‘the people’ in their capacity as holders of the primary constituent power (in contrast with the limited amendment power), this mitigates many of the challenges raised by unamendability.