The Theory and Practice of Unconstitutional Constitutional Amendments in Slovakia

This paper critically reexamines the jurisprudence of “legal forms” of the Slovak Constitutional Court and the corresponding possibility for an unconstitutional constitutional amendment decision. The Court traditionally held back from reviewing constitutional amendments, despite sporadic dicta in the case-law that if a challenged act constituted an abuse of form, it would need to do so. The paper reviews Slovak domestic theory on the unconstitutional constitutional amendments and assesses the recent developments wrought by the decision in the Amnesty Abolition Case PL. ÚS 7/2017, where the Court for the first time comprehensively charted the material core of the Constitution. The paper also draws a comparison to the Czech Melčák Case (Pl. ÚS 27/09) of an unconstitutional act.

Unamendability for Constitutionality

Constitutional unamendability has recently found justifications that show reverence to constituent power. Such justifications ascribe natural unamendability to the fundamental principles based on democratic founding. These accounts overlook the point of having a constitution and the values that make up constitutionality. In grounding unamendability, they wrongly take constituent power instead of constitutionality as their point of reference. This paper argues that ascribing constitutionality to a polity is already to elevate it with a certain character. A justification for constitutional unamendability must therefore address directly the inevitable step of evaluation in making sense of the concept of constitutionality. This paper draws on Fuller’s distinction of moralities of duty and aspiration and Finnis’s concept of focal meaning to articulate constitutionality as an aspirational ideal and constitutional unamendability as a tool to realise constitutionality’s morality of duty.

(I)Liberal Constitutionalism and Populism: how “We, the people” threat constitutional changes

The idea that the constitutional amendment power is limited and that amendments can be unconstitutional gains traction by the day. While scholarship attempts to make a theoretical sense of it, the idea continues to migrate across jurisdictions. This panel will discuss the idea of unconstitutional amendments from both theoretical and comparative perspectives. Is the Slovak Constitutional Court devising a doctrine of unconstitutional constitutional amendments? Can an evaluative justification be offered for constitutional unamendability instead of the recent positivist justifications? What does ‘the people’s participation in constitutional change entail regarding democratic constitutionalism and the legitimacy of constitutional change? Exploring these questions, this panel aims to contribute to this topical issue with novel perspectives.