Stone, A --- "Unconstitutional Constitutional Amendments: Between Contradiction and Necessity" [2018] UMelbLRS 9

Last Updated: 17 September 2018

ABSTRACT

The idea of an unconstitutional constitutional amendment is apt to puzzle some constitutionalists. It is thought to involve an inherent paradox or at least to be deeply undemocratic, denying to the people control of their own constitutional future. This idea that, which I will call the ‘contradiction thesis’, is taken to task Unconstitutional Constitutional Amendments.^[1] Yaniv Roznai seeks to unscramble these apparent contradictions, to provide a secure theoretical foundation for the idea constitutional unamendability and to resolve its tensions with democracy. This argument is ambitious in its scope and its global comparative reach. Roznai does not limit himself to justifying explicit limitations placed on the power of amendment nor to limitations that go only to process. Rather, Roznai argues that amendment powers are always subject to limitations of substance and procedure and that these limitations may be implicit as well as explicit.

In this short essay argues the Roznai successfully unscrambles the apparent conceptual confusion in the idea of an unconstitutional constitutional amendment. It does not, however, successfully show that the recognition of a doctrine of unamendability, at least in its substantive and implicit forms, is a necessary consequence of constitutionalism. A full justification for a doctrine of unamendability depends, more than Roznai recognises, on the nature of a given constitutional order.

Unconstitutional Constitutional Amendments: Between Contradiction and Necessity

Adrienne Stone^[*]

INTRODUCTION

The idea of an unconstitutional constitutional amendment is apt to puzzle some constitutionalists. It is thought to involve an inherent paradox or at least to be deeply undemocratic, denying to the people control of their own constitutional future. This idea that, which I will call the ‘contradiction thesis’, is taken to task Unconstitutional Constitutional Amendments.^[2] Yaniv Roznai seeks to unscramble these apparent contradictions, to provide a secure theoretical foundation for the idea constitutional unamendability and to resolve its tensions with democracy. This argument is ambitious in its scope and its global comparative reach. Roznai does not limit himself to justifying explicit limitations placed on the power of amendment nor to limitations that go only to process. Rather, Roznai argues that amendment powers are always subject to limitations of substance and procedure and that these limitations may be implicit as well as explicit.

Any response to this book should acknowledge the depth of its scholarship, the clarity of its analysis and the elegance of its proposed solution. Moreover, the argument successfully unscrambles the apparent conceptual confusion in the idea of an unconstitutional constitutional amendment. It does not, however, successfully show that the recognition of a doctrine of unamendability, at least in its substantive and implicit forms, is a necessary consequence of constitutionalism. A full justification for a doctrine of unamendability depends, more than Roznai recognises, on the nature of a given constitutional order.

In this short essay, I will first revisit the basic elements of Roznai’s argument before turning to consider the role played in it of the idea of ‘constituent power’. I will argue that ‘constituent power’ is deployed conceptually and that the argument proceeds by way of deduction from the concept of constituent power. With this in mind, I will argue that this form of argument cannot fully justify the doctrine of unamendability as Roznai elaborates upon it. It allows Roznai to establish that unamendability is a conceptual possibility but it does not follow, as he seeks to argue, that unamendability is a necessary consequence of constitutionalism.

1. THE ARGUMENT

The analysis, though richly detailed, is made with admirable clarity. With some inevitable simplification, its essential elements can be stated as follows. First, Roznai turns to the concept of ‘constituent power’ to explain constitutionalism. Constitutions are created by a constituent act which is ‘free and independent from any formal bonds of positive law created by the constitution’.^[3] In this last respect, constituent power is to be contrasted with constituted power, that is the power established by the constitution, exercised under it and which are therefore subject to constitutional control.^[4]

Second, Roznai characterises the amendment power as ‘secondary’ constituent power. In doing so, he casts the amendment power as sui generis, sitting between constituent power on the one hand and constituted power on the other.^[5] Further, constituent power is a delegated form of power, granted to the amending institutions by the people. This characterisation is crucial for the analysis. It is precisely because the power to amend the constitution is delegated by those who exercise primary constituent power, that the exercise of the amendment power is limited.

Third, from this foundation, Roznai argues for the recognition of both explicit and implicit limitations on the amendment power. Self-evidently, where a constitution provides for an explicit limitation, the constituent power has made clear the nature of the delegation clear. But there is no reason, the argument runs, to suppose that all limitations will be made explicit. On the contrary, it follows from nature of the amendment power as delegated power that the amendment power can be limited implicitly.

Fourth, the constituent act creates a constitution that has core set of principles that in turn form the ‘identity’. Those essential elements cannot be undone without undoing the constituent act. Therefore whether explicitly provided for or not, a power of amendment is limited so that it cannot be used to undermine or alter that basic identity. Thus, Roznai brings us to a justification for basic structure doctrine which, as he shows, can be identified in early American thought, finds its fullest judicial expression in the opinions of Supreme Court of India and which has since migrated through much of the globe.

2. THE CONSTITUENT POWER AND THE CONCEPT OF UNAMENDABILITY

The structure of Roznai’s argument is such that much hinges on the concept of ‘constituent power’, a foundation stone of constitutional thought globally.^[6] At its most basic, constituent power is simply ‘the power to establish the constitutional order of a nation.’^[7] From this it follows that the constituent power is free from legal constraint. Because, the constituent power arises outside of the constitutional order and gives rise to the constitutional order (and to the consequent generation of laws) the constituent power is not itself subject to law.

Roznai explains these concepts with a rich and interesting discussion of their intellectual history. But much remains elusive about the concept of constituent power and the role it plays in his argument. An assessment of Roznai’s argument requires a careful consideration of the nature of the concept as he relies upon it and of the role that it plays in his argument.

Descriptive or Normative?

To begin with it is fairly clear that Roznai does not use ‘constituent power’ to describe the actual founding of any particular constitutional order.^[8] On the contrary, Roznai joins other theorists of constituent power in admitting the short comings when compared with the messy realities of constitution making. For one thing, the constituent power – even its most basic form - presupposes a break with any past legal order. But, as Roznai concedes while ‘some constitutions were formed in revolutionary circumstances, breaking the previous constitutional order, or during state-building. Others were constituted through international efforts or imposed by foreign and external forces’. Moreover ‘the constitution making process is often exercise in continuity with historic or existing laws or in accordance with pre-determined rules.’ For this reason Roznai concedes that the exercise constituent power is may not be ‘purely original’ but ‘original only in the sense that, by is nature, it does not necessarily derive from nor is bound to prior or existing constitutional rules.’^[9]

To elaborate on this argument for a moment, a second set of descriptive inaccuracies are readily evident if one considers its modern conceptualisation as an exercise of the constituent power of the people.^[10] It is very easy to point to ways in which constitution making processes regularly not meet his description. Some follow directly from the circumstances just discussed. For instance, an imposed constitution will inevitably fail the test given the absence or rather limited nature of popular participation. And even popular participation per se, without conditions for deep deliberation, may be inadequate to meet the demands of this idea.^[11]

If constituent power is not intended to describe the creation of a constitution, it might be invoked as a normative baseline. That is, it provides a measure of legitimacy a measure of legitimacy against which a constitution or constitutional practice can be measured.^[12] Conceived in this way, the concept of constituent power has a clear role to play in constitutional theory. As Roznai explains:

In the modern era, the nation’s constitution receives its normative status from the political will of the ‘people’ to act as a constitutional authority. The ‘people are the subject and the holder of the constituent power’.^[13]

However, the idea of constituent power invoked in this last passage involves assumptions made about the circumstances of the exercise of constituent power: that it was exercised by the people of at least in a manner that represented the authentic will of the people. Although he acknowledges this ‘thicker’ idea of constituent power, it is not the foundation of his analysis. Roznai’s task is not to assess particular constitutional orders for their consistency with a requirement that they are founded in the authentic expression of the people’s will. His work, for all the richness of its intellectual history and conceptual clarity does not engage in the fine-grained case by case analysis of particular constitutions and their making that would be necessary to make out this kind claim. Rather he seeks to advance a general justification for the idea of unamendability founded in the idea of constituent power.

For this reason, I take Roznai to be relying on a ‘bare concept’ of constituent power rather than a thicker modern version that is more normatively attractive but which also involves a set of presuppositions about the nature of the exercise of constituent power in a given case.

Conceptual?

With all this in mind, it appears that the reliance on constituent power in Roznai’s work can be describes as ‘conceptual’ rather than either normative or descriptive. As Martin Loughlin describes this kind of argument, constituent power can be deployed of as ‘a formal concept’ or ‘presupposition’ ... ‘postulated to make sense of an authority of an agent to alter the terms of the constitution’.^[14] In other words, the argument presupposes that order to make sense of a constitutional order we need a concept of constituent power and the idea of a constituent act – much like the idea of a ‘social contract’ – as way of testing and elaborating our intuitions about constitutionalism.

This conceptual use of ‘constituent power’ is perhaps best understood by recalling that Roznai seeks to rebut the contradiction thesis and to resolve the apparent contradiction between idea of an unconstitutional constitutional amendment and the unconstrained nature of constituent power. The success of the argument lies in his separation of the power of amendment from the original constituent power and recharacterization of it as an exercise of secondary constituent power. This move in turn allows him to argue that the amendment power is limited and that those limits (whether explicit or implicit) are derived from the constitutional order established by the exercise of original constituent power.

The Amendment Power as Necessarily Limited

Roznai has succeeded in rebutting the contradiction thesis and identifying a coherent way in which a power to amend can be understood be limited consistently with the unlimited nature of the constituent power.

But the argument seeks to do more than offer a doctrine of unconstitutional constitutional amendment as a conceptual possibility. Unamendability is said to follow as a conceptual necessity from the idea of a constitution. Moreover, it extends to both implicit and procedural limits. To put it another way, Roznai’s argument is that it follows from the very nature of a constitution that the power to amend it is limited in substance and whether or not those limitations are made explicit.

1. Implicit Limits

To make his case for the recognition of implicit and substantive limits, Roznai elaborates his characterisation of relationship between the amendment power and the original constituent power by reference to the ideas of delegation and trust that are traced to the political theory of Thomas Paine, and John Locke and which also find expression in other aspects of public and private law.

‘[M]odern studies of delegation now adopt the model of ‘principal-agent’ in order to define the act of delegation. The one who delegates authority, and has the original constituent power, is the principal, while the one to whom the authority is delegated is the amendment authority and represents the agent.’

Moreover, quoting Thomas Paine, he maintains that ‘all delegated power is trust’. That is, delegated power is necessarily power conferred for a certain purpose and the holder of that power has an obligation to act for those ends.

This brings Roznai to the conclusion that ‘the delegation of the amendment power inherently entails certain limitations’^[15] namely to act in accordance with the purposes for which the delegation is made.

2. Substantive Limits

The nature of those purposes then becomes the critical question. Roznai’s argument is that these must be taken to be substantive as well as procedural. To make this point, Roznai relies on the idea of constitutional identity. Constitutions have a core set of features or principles that are essential to their identity and it is these are the features that cannot be amended for a delegated power of amendment held on trust by the amending institution cannot be used to change the identity of the constitution, for that would go against the purpose for which the amending power was conferred. Matters of constitutional identity – whether express or implied – are therefore beyond the power of amendment and are subject only to replacement by exercise of the original constituent power.

CRITIQUE

Understanding that Roznai proceeds by deduction from a concept of constitutionalism is critical to understanding his argument. As I have acknowledged, the argument provides a convincing rebuttal of the contradiction thesis and in doing so shown there is a coherent understanding of amendment power pursuant to which the amendment power is limited.

However, demonstrating this conceptual possibility does not show its necessity and it is at this point that Roznai’s argument begins to falter a little.

Inherent Limits Arising From a concept of ‘Trust’

First, there is room to question whether his reliance on the notions of ‘principal-agent’ and of ‘trust’ will be appropriate in all cases. After all, these are ideas drawn from the private law that regulate delegations of power in private relations within a given constitutional order. No doubt the precise content of the law of agency and trusts varies from place to place. But the legal relationship is recognised or imposed by the law in response to some aspect of the relationship between the parties either on the basis that the parties have (implicitly or explicitly) agreed to such a relationship or in response to the nature of their relationship.

I do not think that Roznai means to argue that constitutions are to be understood as agreements. His is not a theory of constitutional meaning but a theory of what constitutionalism entails. The argument that the ‘delegation’ of an amendment power by its nature should be understood as necessarily entailing a limit that the delegated amendment power not be used in way that ‘undoes’ the constituent act. If this is not a theory of agreement, there must be something about the constituent act that justifies its continuing control. However, the bare concept of a constitution (as the creation of a ‘constituent act’) seems too thin to justify the proposition. Rather, the argument seems to accord normative weight to the constitutional order arising out of a constituent act and in doing so presupposes that initial exercise of constituent power occurred in circumstances which justify this weight. However, as we have seen, Roznai does not engage in the kind of analysis that would establish the normative weight of any particular constitutional order.

In making this point, I am not denying the ways in which amendment powers are, as Roznai has shown, partly constituted powers. That gives rise to the conceptual possibility of a limited amendment power. Nor am I not reasserting the contradiction thesis. There is nothing that precludes a limitation on the amendment power in a given case.^[16] If the original exercise of constituent power has moral authority (arising, say, from its character as the expression of the authentic will of the people), then the replacement of the Constitution through an ordinary amendment can be seen endangering or even eradicating the constitution’s legitimacy. But if this is the argument, the idea of constituent power is wielded in quite a different way. It involves a claim about an actual exercise of constituent power – which Roznai does not make - rather than the invocation of the bare concept on which Roznai relies.

The Nature of the Limitation: Constitutional Identity

In any event, without more, what follows from the recognition of limits is unclear. In Roznai’s argument the content of limitations on amendment is determined by a constitution’s ‘identity’. Thus, the amendment power is limited so as to ensure the maintenance of the essential identity of the constitutional order. But once again reliance on the concept of ‘identity’ does not take the argument as far as Roznai claims.

The idea that a constitution has some kind of a core identity seems unassailable. If the idea of a ‘constitution’ is to mean anything, there must be some arrangements that are not worthy of the name. However, it is worth distinguishing between two versions of this idea. First, there are some core features that are core features of constitutions as such. A ‘constitution’ that, for instance, exhibited no commitment to the rule of law would seem, by that very fact, not to qualify as a constitution. Second, there are some features that makes a constitution, a particular constitution. So for instance, the secular character of the Constitution of India might be core to the identity of that Constitution but, given the general acceptance of religious establishment, it can hardly be taken to be core to the concept of a constitution.

If we accept that there are some limits on the amending power arising either out of a notion of trust, the conceptual case for unamendability is stronger in relation to the first type of change. Assuming that identity imposes some limits surely an amendment power is subject at least to a limitation curtailing an amendment that alters a constitution in such a way that what remains cannot be categorised as a ‘constitution’.

However, it is harder to see the necessity of that conclusion in relation to the second type of amendment. It can be accepted that if a core feature of this kind (whether securalism in the case of India or any other core feature of any constitution) is amended, the constitution has been replaced rather than revised. But why does it follow simply from the idea of a constitution and from a bare concept of constituent power that replacement of this kind through amendment impossible? Why could not it be contemplated by, and therefore entirely consistent with, the original constituent power that the amendment power enables identity change of this kind, especially since what has emerged is nonetheless a ‘constitution’? Such a commitment to the permissibility of radical change might even reflect a certain view of constitutionalism and indeed be part of that constitution’s identity. Alternatively, it might be that there is a tradition of formalism within a given constitutional order that precludes an implicit doctrine of unamendability^[17] which in turn might also be an element of constitutional identity.

The case for recognising radical amendments of this kind might be especially strong where the moral authority of a constitution is somewhat weak because of deficiencies in the exercise of the constituent power. It would be strengthened further if there were reasons to regard the amendment power as better representing the authentic will of the people. The history of the Australian Constitution demonstrates how this dynamic might arise. The Australian constitution-making process conducted during the 1890s through a series of elected constitutional conventions was, for its time, highly participatory and deeply deliberative. But the exclusion First Peoples (among others) from the process and the failure to recognise their prior sovereignty call that conclusion into question.

Indeed, it seems highly implausible that the idea of a constituent act that authentically represents the people would aptly describe constitution making in any of the ‘settler-states’ given the ongoing process of contestation and reconciliation that continues to characterise relations between those states and their Indigenous peoples.^[18] By contrast, given modern understandings of voting rights in the Australian Constitution, Indigenous Peoples (as well as women others excluded at the time) could not now be excluded from the amendment process which involves both a Parliamentary vote and a referendum.^[19] The excise of power under the amendment process therefore has a higher claim to represent the authentic will of the people than the apparent exercise of the constituent power at the time of the framing.

In one sense Roznai anticipates part of this argument. He is rightly sensitive to variations among amendment clauses. His ‘spectrum of unamendability’ responds to this by persuasively arguing that ‘the more an amendment process contains inclusive and deliberative mechanisms, the more closely it resembles the people’s primary constituent power’ the more scope it should be given. Conversely governmental amendment powers (though ordinary or special majorities in a legislature for instance) should be given less scope.

My argument reveals the other side of this coin. The case for a doctrine of unconstitutional constitutional amendments waxes and wanes according to the nature of the exercise of constituent power as well. We need to be as attentive to the ‘polymorphic’ nature of constitution making as to the variability among powers of amendment. Moreover, the case for unconstitutional constitutional amendments may depend on a careful comparison on the particulars of each.

Conclusion and a Methodological Point.

My central claim then is that Roznai’s argument is partially successful. He defeats the contradiction thesis but does not establish the necessity of his conclusions. The case for unconstitutional constitutional amendments remains between contradiction and necessity. This contribution is important but the complete case for recognising a doctrine of unconstitutional constitutional amendments requires more by way of careful, contextual study of particular constitutions.

Let me conclude with a methodological point. Roznai’s careful intellectual history and conceptual argument is accompanied by a broad comparative study against which his ideas are tested and which provide a rich set of illustrations of his arguments. But it is notable that the comparative work is not deployed in concept formation. On the contrary, the argument is formed deductively and thus the remains divorced from realities of constitution making and amendment.

This feature of the argument points to a methodological question that deserve more attention from comparative constitutional scholars. As Rosalind Dixon and I have argued elsewhere, constitutional theorists often make claims that are purportedly universal but which turn out to embed assumptions that are particular to one (or a set of) jurisdictions.^[20] At a minimum there is a need for constitutional theorists be much clearer about the assumptions embedded in their work. But in addition, addressing this gap between comparative constitutional law and theory offers the exciting possibility of more comparatively informed and consequently more powerful constitutional theory.

---

^[1] Yaniv Roznai, Unconstitutional Constitutional Amendments (Oxford University Press, 2017).

^[*] Redmond Barry Distinguished Professor, Kathleen Fitzpatrick Australian Laureate Fellow, Melbourne Law School. Support for this research was provided by the Australian Research Council through my Kathleen Fitzpatrick Australian Laureate Fellowship. Thanks are due to Rosalind Dixon, Cheryl Saunders and Lael K. Weis for their extremely insightful comments on a draft. It benefitted also from discussion of these ideas with the Reading Group of the Laureate Program in Comparative Constitutional Law at Melbourne Law School.
^[2] Yaniv Roznai, Unconstitutional Constitutional Amendments (Oxford University Press, 2017).
^[3] Ibid 106.
^[4] Ibid 109.
^[5] Ibid, at 110-112.
^[6] It is not as prominent in contemporary Anglo-American constitutional thought as in some other traditions. However, on a distinctive tradition of constituent power in American constitutional thought see, William Partlett, ‘The American Tradition of Constituent Power’ (2017) 15 International Journal of Constitutional Law 995 and for an argument for an ‘unamendable core’ of the US Constitution, see Richard Albert ‘The Unamendable Core of the United States Constitution’ in Andras Koltay (ed.) Comparative Perspectives on the Fundamental Freedom of Expression (Budapest, Hungary: Wolters Kluwer, 2015) . For a history of the concept in Britain, see Martin Loughlin, ‘Constituent Power Subverted: From English Constitutional Argument to British Constitutional Practice’, in Martin Loughlin and Neil Walker The Paradox of Constitutionalism: Constituent Power and Constitutional Form (Oxford: Oxford University Press 2008) .
^[7] Above n 2, at 105.
^[8] A slightly less demanding version of the argument would have it that constituent power might not actually characterise the founding moment but rather is part of the founding myth of a constitution and which as a sociological matter justifies the constitutional order to its citizens. But once again, this is clearly not Roznai’s point since he seeks to justify unamendability as a general matter and not by reference to the founding story of any particular constitution.
^[9] Ibid at 121-22. (2015) 50 Wake Forest Law Review 859.
^[10] See also David Landau and Rosalind Dixon ‘Constraining Constitutional Change’ Chaihard Hahm and Sung Ho Kim, ‘To Make “ We the People” Constitutional Founding in Post War Japan and South Korea (12010) 8 International Journal of Constitutional Law 800, 811
^[11] Especially given the role of elites
^[12] To be sure it has its competitors. Thus, there is debate between theorists of constituent power like Martin Loughlin and those who, like David Dyzenhaus, locate the legitimacy of a legal order in the intrinsic morality of law and for whom the idea of a founding moment at which the constituent power is exercised holds little descriptive or normative appeal. David Dyzenhaus, ‘The Politics of the Question of Constituent Power’ in Walker and Louglin above n 5.
^[13] Ibid, at 105-06.
^[14] Martin Louglin, ‘On Constituent Power’ in Michael W. Dowdle and Michael A. Wilkinson (eds) Constitutionalism Beyond Liberalism (Cambridge: Cambridge University Press 2017).
^[15] Above n. 2, 119
^[16] Moreover, whether or not this is a wise to create an amendment power of this nature is not the question here. The question is whether is conceptually possible to think of an amendment power as unconstrained.
^[17] See, Richard Albert, Malkhaz Nakashidze and Tarik Olcay, ‘The Formalist Resistance to Unconstitutional Constitutional Amendments’ forthcoming (2019) 70 Hastings Law Journal.
^[18] Dylan Lino, Constitutional Recognition of Australia’s Indigenous Peoples: Law History Politics (PhD Thesis 2017, University of Melbourne) held at University Library, University of Melbourne. Further, given changing ideas of equality and civic participation, it seems likely that any reasonably old constitution would fail to meet what are now understood as the normative prescriptions for a true exercise of the constituent power of the people.
^[19] Rowe v Electoral Commissioner [2016] FCA 1081; (2010) 243 CLR 1.
^[20] For a longer form of this argument made in relation to Jeremy Waldron’s rights-based objection to judicial review, see Rosalind Dixon and Adrienne Stone ‘Constitutional Amendment: A Comparative and Philosophical Reflection’ in David Dyzenhaus and Malcolm Thorburn (eds) Philosophical Foundations of Constitutionalism (Oxford: Oxford University Press, 2016).