Skip to main navigation menu Skip to main content Skip to site footer

Vol. 14 No. 2 (2021)


Unconstitutional Constitutional Amendments and the Stratification of Powers

DOI:  [Google Scholar]
Published: 2022-07-19


The subject of the article is the idea of unconstitutional constitutional amendments. The essay does not concern any specific legal order but takes the perspective of a general theory/philosophy of law. The study is divided into two parts. The first part briefly describes the theory and practice of applying the idea of unconstitutional constitutional amendments. The second part reveals and analyzes the basic assumptions of the theory of unconstitutional constitutional amendments: “the assumption of the stratification of powers” and “the essentialist assumption.” As a result of the analysis, it is concluded that on the grounds of democracy and constitutionalism the inadmissibility of amendments to the constitution should be linked not to the difference between the establishment of the constitution and its amendment, but to the difference between the degree of democratic legitimacy of the indicated law-making activities. Therefore, the article also formulates a postulate that the admissibility of declaring the unconstitutionality of constitutional amendments should be limited to cases where the amendments were adopted in a procedure with an evidently lower degree of democratic legitimacy.


  1. Bezemek, Christoph. 2011. “Constitutional Core(s): Amendments, Entrenchments, Eternities and Beyond. Prolegomena to a Theory of Normative Volatility.” The Journal Jurisprudence 11:517–48. [Google Scholar]
  2. Dicey, Albert V. 1982. Introduction to the Study of the Law of the Constitution. Indianapolis: Liberty Fund, Inc. (Reprint. Originally published: 8th ed. London: Macmillan, 1915). [Google Scholar]
  3. Dlamini, Qhubokuhle. 2009. “Separation of Powers and Judicial independence: Is Zuma government overriding the power of our courts to achieve transformation.” Centre for Civil Society, 1–15. [Google Scholar]
  4. Dyzenhaus, David. 2008. “The Politics of the Question of Constituent Power.” In The Paradox of Constitutionalism: Constituent Power and Constitutional Form, edited by Martin Loughlin, and Neil Walker, 129–46. Oxford: Oxford University Press. [Google Scholar]
  5. Krishnaswamy, Sudhir. 2010. Democracy and Constitutionalism in India: a Study of the Basic Structure Doctrine. New Delhi: Oxford University Press. [Google Scholar]
  6. Mate, Manoj. 2010. “Two Paths to Judicial Power: The Basic Structure Doctrine and Public Interest Litigation in Comparative Perspective.” San Diego International Law Journal 12, no. 1:175–222. [Google Scholar]
  7. Mohallem, Michael F. 2011. “Immutable clauses and judicial review in India, Brazil and South Africa: expanding constitutional courts’ authority.” The International Journal of Human Rights 15, no. 5:765–86. [Google Scholar]
  8. Preuss, Urlich. 1994. “Constitutional Powermaking for the New Polity: Some Deliberations on the Relations between Constituent Power and the Constitution.” In Constitutionalism, Identity, Difference, and Legitimacy: Theoretical Perspectives, edited by Michel Rosenfeld, 143–64. Durham: Duke University Press. [Google Scholar]
  9. Ragone, Sabrina. 2019. “The Basic Structure of the Constitution as an Enforceable Yardstick in Comparative Constitutional Adjudication.” Revista de Estudos Constitucionais, Hermeneutica e Teoria do Direito 11, no. 3:327–40. [Google Scholar]
  10. Randhawa, Jasdeep. 2011. “Understanding Judicialization Of Mega-Politics: The Basic Structure Doctrine And Minimum Core.” Jus Politicum 6:1–43. [Google Scholar]
  11. Roznai, Yaniv. 2017. Unconstitutional Constitutional Amendments. The Limits of Amendment Powers. Oxford: Oxford University Press. [Google Scholar]
  12. Webber, Grégoire C.N. 2009. The Negotiable Constitution – On the Limitation of Rights. Cambridge: Cambridge University Press. [Google Scholar]


Download data is not yet available.