Yaniv Roznai's "Unconstitutional Constitutional Amendments"

Yaniv Roznai is an assistant professor at the Radzyner Law School of the Interdisciplinary Center Herzliya (IDC). He specializes in comparative constitutional law, constitutional theory, legisprudence, and public international law. Roznai holds a PhD and LLM from the London School of Economics, and LLB and BA degrees in law and government from the IDC. He is also an elected board member and secretary general of the Israeli Association of Public Law.

Roznai applied the “Page 99 Test” to his new book, Unconstitutional Constitutional Amendments: The Limits of Amendment Powers, and reported the following:

The book deals with the question, can constitutional amendments be unconstitutional? One of the most widely debated issues in comparative constitutional theory, constitutional design, and constitutional adjudication. The book describes and analyses the increasing tendency in global constitutionalism to substantively limit formal changes to constitutions.

When I opened page 99 (with great curiosity!) in order to see whether it is representative of the book, I was amused at first sight; the page appears in a chapter which is relatively secondary to the book’s main questions: a chapter on “supra-constitutional unamendability” which examines limitations on constitutional amendment powers that are external to the constitutional system and above it, such as natural law or international law. The first half of the page deals with Switzerland, the constitution of which grants “explicit constitutional recognition to the position that jus cogens norms of international law were a limitation to constitutional amendments.” Ford’s statement, I thought, was completely inaccurate for the book. However, after a second thought, and when thinking of the second part of the page, it actually appears that much can be learned from page 99. I quote here the final paragraph of that page in full:

At first glance, the above examples demonstrate that, in some jurisdictions, international law may be normatively positioned even above the constitution itself. However, one must be cautious when evaluating such alleged supremacy of international law within the domestic constitutional order: as Gerald Neuman remarks, ‘even if a constitutional provision accords supremacy to international law, that provision itself will be subject to amendment, if necessary by resort to the constitution-giving power of the people’. This observation demands clarification. An ordinary constitutional provision granting international law supremacy can indeed be subject to future amendments. However, if such a constitutional provision were to be drafted as an ‘unamendable’ provision, it would bind the amendment powers. Hence, an explicit unamendability to not violate certain rules of international law would also apply to constitutional amendment powers. Of course, a similar unamendable provision would not limit or bind the original constituent power.

This paragraph provides, firstly, a mini-summary of that chapter. Nowadays, certain rules of international law now impose limits on what can be accomplished through formal constitutional change. However, such supremacy of international law, I argue, is still qualified as it is based on the constitution itself which may provide such superiority. Nonetheless, the constitution may be amended or replaced by a new constitution. Secondly, this paragraph provides insights into the book’s larger argument: explicit limits on constitutional amendment power are valid and restrict the holder of amendment powers. The amendment power is a delegated legal competence which must obey those explicit conditions stipulated in the constitution. To amend the constitution so as to abolish unamendable principles would be an “unconstitutional constitutional amendment”. However, in their primary constitution-making capacity, the people’s – not the delegated organs – can change even unamendable provisions via a proper channel of higher-level democratic participation and deliberations.

By using constitutional theory and a wide comparative study, the book thus aims to explain what the nature of amendment power is, what its limitations are, and what the role of constitutional courts is and should be when enforcing limitations on constitutional amendments.

Learn more about Unconstitutional Constitutional Amendments at the Oxford University Press website.

--Marshal Zeringue