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.

The Eternity Clause – Lessons from the Czech Example (recent developments)

My paper presents lessons from the Czech example of the so-called “Eternity Clause,” i.e. a legal standard declaring certain principles, values or specific constitutional provisions to be unalterable and irrevocable.
That the Eternity clause is a practical instrument has already been proved by the Czech Constitutional Court in its famous “Melčák” decision. However, recent developments show that the Czech Constitutional Court is no longer open to such a “radical” approach. Nonetheless, it still seems that the court is prepared to defend the values of liberal democracy, just not in such a spectacular way. It is therefore more up to the political actors or the people themselves to use Eternity Clause arguments to protect liberal democracy and its values in the region of Central Europe.

The Implicit Limits of Constitutional Amendments

The study of ways to amend a constitution was never an easy question, overall considering the different political traditions and constitutional choices. Besides the clear formal limits to restrain a constitutional amendment, there are othe possibilities, that differs by nature and constitutional stability, such as: temporal limits, material limits and circunstantial limits. Those options changes in every constitutional choices and time to time. Nevertheless, the doutrinary approach reveals some important accomplishment in protecting an essential forms of every constitution. Those implicit limits have an arreay in common, even if not writting they are the last defence against the overacting of political power (in form of parlament or presidential). This seminar examines the fortitude of those implicit limits to amend a constitutional when they are challenged. This study will offer a constitutional comprative approach.

The Unconstitutional Constitutional Amendment Doctrine in the American States: State Court Review of State Constitutional Amendments in the U.S.

I examine the degree to which the unconstitutional constitutional amendment doctrine has been employed in the American states. One purpose is to identify the occasions and reasons why state courts have invalidated amendments and to show that rulings have focused on inaccurate ballot language, multiple subjects, procedural violations, violations of federal law, and subject-matter violations. However, and this is the paper’s second purpose, notably absent are state court cases employing the unconstitutional constitutional amendment doctrine, in the sense of invalidating amendments for violating state constitutional provisions or principles. The paper’s third purpose is to explain why American state courts have not embraced the unconstitutional constitutional amendment doctrine in a way that has been embraced by courts in other polities. A key explanation is found in the strength of the popular sovereignty doctrine and role of the public in approving constitutional changes in the U.S.

Unconstitutional Constitutional Amendments: the case of the European Union

This paper explores ‘unconstitutional constitutional amendments’ within the EU. This is a topical issue given both the challenges to the ‘constitutional equality’ of Member States from the economic crisis, and the rule of law crisis across Europe. One could question whether fundamental constitutional ideas such as State equality and the rule of law are of such weight as to operate as limits to future amendments to the Union legal order.
Such ideas highlight unsettled questions about the nature of the EU legal order. Are the Member States ‘the masters of the Treaties’? Or is there a role for European Court of Justice to enforce (and perhaps to recognise) substantive limits to amendment?
The paper thus captures the political reality of EU amendment. It challenges the idea that ‘hard’ public law concepts of ‘unconstitutionality’ can address seemingly intractable political problems. Indeed, the current crises are rooted in concerns over sovereignty, national identity, and economics.