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 the substantive core of the Constitution. What constitutes the core of the Constitution is sometimes codified and sometimes not, yet in both cases courts rely on their own interpretation of the limits of the amendment power to deny amending actors the right to amend their Constitution. In this paper, I explore alternatives to the extraordinary action of invalidating a constitutional amendment and suggest that there may exist a better path for courts to take instead of invalidating a procedurally-perfect constitutional amendment.
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 is unamendable is unclear. Even more, a “simple” amendment to a clause protected by an eternity provision might be adopted through the processes used to replace constitutions as a whole, in which case we might understand the simple amendment as a pro tanto replacement. Insisting that provisions protected by eternity clauses be modified by constitutional replacements — or through the procedures used for such replacements — might serve as valuable “speed bumps” to slow down replacement, though one might wonder whether the eternity clause itself would be a sufficient speed bump.