If/When Does Informal Constitutional Change by Constitutional Courts Become Unconstitutional?: Rethinking the Nexus of Interpretation, Unamendability and Unconstitutionality

This paper problematizes the relationship between interpretation and the scope of unamendabilility, and asks the following question: if the normative content of an unamendable principle had not been included in the text of the constitution but was instead established through interpretation, would the adoption of a new interpretative paradigm be considered as an ‘unconstitutional informal constitutional change’? By drawing illustrative insights from the interpretative paradigm shift of the principle of secularism in Turkish constitutional practice, the paper argues that it might not always be possible to distinguish interpretation from the assumedly objective textual meaning, especially when substantial norms are at stake. This paper then concludes that even though ‘unconstitutional informal constitutional change’ might be regarded as a logical consequence of constitutional unamendability, the interrelatedness of interpretation, unamendability and unconstitutionality unveils concrete practical difficulties, which require further theoretical reflection.