Unconstitutional Constitutional Amendments

Description

Can constitutional amendments be unconstitutional? The problem of 'unconstitutional constitutional amendments' has become one of the most widely debated issues in comparative constitutional theory, constitutional design, and constitutional adjudication. This book describes and analyses the increasing tendency in global constitutionalism to substantively limit formal changes to constitutions. The challenges of constitutional unamendability to constitutional theory become even more complex when constitutional courts enforce such limitations through substantive judicial review of amendments, often resulting in the declaration that these constitutional amendments are 'unconstitutional'.
Combining historical comparisons, constitutional theory, and a wide comparative study, Yaniv Roznai sets out to explain what the nature of amendment power is, what its limitations are, and what the role of constitutional courts is and should be when enforcing limitations on constitutional amendments.

About the Author

Yaniv Roznai is an assistant professor at the Radzyner Law School of the Interdisciplinary Center Herzliya (IDC). He specializes in comparative constitutional law, constitutional theory, legisprudence, and public international law. Roznai holds a PhD and LLM from the London School of Economics, and LLB and BA degrees in law and government from the IDC. He is also an elected board member and secretary general of the Israeli Association of Public Law. He has been a Post-Doctoral Fellow at the Minerva Center for the Rule of Law under Extreme Conditions, University of Haifa, and at the Hauser Global Law School, New York University, and a visiting researcher at the Program in Law and Public Affairs, Princeton University. This book is based upon his PhD for which he was awarded the 2014 Thesis Prize of the European Group of Public Law.

Reviews

"The book skilfully introduces the phenomenon of unconstitutional constitutional amendments and provides a sophisticated justification for constitutional unamendability... The book's appeal is not only to those studying constitutional change, but also to scholars of comparative law and comparative politics, as well as those brooding over what it means to uphold democracy. It also promises to be an invaluable reference book with its extensive bibliography... Institutional and personal libraries alike had better make room for Unconstitutional Constitutional Amendments." - Tarik Olcay, Constitutional Change
"Roznai's book provides a comprehensive and detailed analysis of unconstitutional constitutional amendments. Roznai discusses the constitutions containing provisions regarding this fascinating phenomenon (be they express or implied), and the courts' reactions to them. The book provides an in-depth analytical review of the problems that eternity clauses present the political authorities and the courts. This is an excellent book that discusses one of the central problems of modern constitutionalism." - Aharon Barak, Professor of Law, Radzyner Law School, The Interdisciplinary Center Herzliya; Visiting Professor of Law and the Gruber Global Constitutionalism Fellow at Yale Law School; Former President of the Supreme Court of Israel
"This excellent book is not just another addendum to the list of technical problems handled by constitutional experts. In his analysis of the character of the amending power - 'an exceptional authority, yet a limited one' - Yaniv Roznai reaches the very core of constitutionalism. Setting aside the formal positivistic framework, his rich and illuminating reconstruction of the role of 'the people' and the meaning of democracy in a constitutional polity refreshes and deepens the understanding of liberal democracy. In times when liberal democracy is under severe stress almost everywhere and challenged by advocates of illiberal democracy, this book could not be more timely." - Ulrich K. Preuß, Professor Emeritus, Freie Universität Berlin and Hertie School of Governance, Berlin
"The problem of unconstitutional constitutional amendments is one of the most topical issues in comparative constitutional law. Roznai's book offers a rigorous framework for analysis and a global knowledge base. It is a welcome addition to the literature on constitutional amendment and will be an essential reference for unconstitutional amendments for some time to come." - Cheryl Saunders, Laureate Professor Emeritus, Melbourne Law School; President Emeritus, International Association of Constitutional Law
"An unconstitutional constitutional amendment - does it exist? More often than you may have thought. But rarely has it been explored. This book, which truly fills a gap, gives a thorough account of and a theoretical foundation for constitutional unamendabilitya subject that gains more and more importance in modern constitutionalism." - Dieter Grimm, Professor of Law at Humboldt University Berlin, Visiting Professor at Yale Law School, and Justice of the Federal Constitutional Court of Germany (1987-1999)
"The theory of constitutional amendments has, somewhat surprisingly, emerged as one of the most central questions for contemporary constitutional theory. Providing a comprehensive overview of worldwide practice regarding judicial review of constitutional amendments, Yaniv Roznai offers the most sophisticated theoretical account yet of constitutional amendments. This is a work of fundamental importance to everyone concerned with the basics of constitutional theory." - Mark Tushnet, William Nelson Cromwell Professor of Law, Harvard Law School

Table of contents

Introduction
Part I: Comparative Constitutional Unamendability
1: Explicit Constitutional Unamendability
2: Implicit Constitutional Unamendability
3: Supra-Constitutional Unamendability
Part II: Towards a Theory of Constitutional Unamendability
4: The Nature of Constitutional Amendment Powers
5: The Scope of Constitutional Amendment Powers
6: The Spectrum of Constitutional Amendment Powers
Part III: Enforcing Constitutional Unamendability
7: Understanding Judicial Review of Constitutional Amendments
8: Exercising Judicial Review of Constitutional Amendments
9: Conclusion
Appendix: Explicit Unamendability in World Constitutions