The “people” as an obstacle to an effective unconstitutional constitutional amendments doctrine: Lessons from Turkey

A constitution does not only organize the separation of powers within a state but also protects inalienable rights and freedoms of individuals. Yet, when it comes to amending constitutions, the “people” may – seemingly – correct all wrongs. Even the unconstitutional constitutional amendments doctrine is based on delegation theory that takes the “people” as the main holder of constitution-making power. However, populist leaders also refer to the same principle while pushing for their constitutional agendas that could undermine fundamental rights and are very willing to use referenda as a legitimizing tool. Thus, this paper will argue that this approach to unconstitutional constitutional amendments doctrine feeds the populist rhetoric rather than putting an effective barrier to abusive constitutionalism. It will illustrate this thesis by using the two latest Turkish constitutional amendments to suggest that the discussion should rather focus on developing a new understanding of the “people” as constituent power.