This panel will consider a range of under-explored questions relating to the doctrine of unconstitutional constitutional amendments. Are their alternatives to invalidating a validly passed constitutional amendment? Can constitutional design and democratic sequencing deal with the problem of anti-democratic, but popularly supported, forms of constitutional change? How do we resolve the tension between ‘eternity‘ clauses...
Alternatives to the Invalidation of Constitutional Amendments
It has become increasingly common for courts in constitutional democracies to invalidate constitutional amendments. Indeed it appears to be the case that the unconstitutional constitutional amendment doctrine has become a global trend in the domestic constitutional law of states. Courts anchor their use of the doctrine of unconstitutional constitutional amendment in what they regard as...
Unconstitutional Constitutional Amendments and Constitutional Replacements
The tension between “eternity“ clauses and the possibility of constitutional replacement has been noted but not adequately explored. Constitutional theory must leave room for replacing a constitution with an eternity clause protecting some specific matter such as federalism or secularism with one modifying federalism or secularism, but then the sense in which the existing constitution...