UNCONSTITUTIONAL CONSTITUTIONAL AMENDMENTS: THE LIMITS OF AMENDMENT POWERS. By Yaniv Roznai. (1) Oxford: Oxford University Press. 2017. Pp. xxiv + 334. $75.00 (cloth).
Constitutional amendments can be "unconstitutional" in two main ways. First, they could be contrary to explicit limits to the amending power contained in the constitutional text itself. Second, they could be contrary to the fundamental principles in which the constitution rests. Although unamendability does not necessarily need to be judicially enforceable, the doctrine of unconstitutional constitutional amendments is usually accompanied by the idea that courts can declare the invalidity of an unconstitutional amendment. Each form of unamendability--explicit and implicit--involves its own particular problems, but they both raise a common set of questions. Yaniv Roznai's Unconstitutional Constitutional Amendments: The Limits of Amendment Powers, is, to my knowledge, the first book to deal with these problems and questions from both a theoretical and comparative (global) perspective. The book introduces readers to the subject through a rich historical account of the development of the doctrine, examines the current practice of explicit and implicit amendability in different jurisdictions and regions, advances a theory about the nature and scope of the amending power, and examines the question about whether the doctrine should be judicially enforced. In this brief review, far from providing a detailed summary of those discussions, I will make three comments that are directly connected to some of the main arguments presented by Roznai. In so doing, I hope to contribute to the debate that this important book is likely to continue to generate among constitutional theorists and comparative constitutional lawyers.
My comments apply to both forms of amendability, unless otherwise indicated. I will suggest, first, that the doctrine has an uneasy relationship with conservative and radical democratic notions of constitutionalism; second, that the distinction between the secondary and primary constituent power, defended through the book, is difficult to sustain in some contexts; and, third, that given the fact that most constitutions do not authorise their own democratic replacement, the judicial enforcement of the doctrine can only be justified exceptionally. Although these comments challenge some aspects of Roznai's approach, it will also be clear that I largely agree with the argument presented in the book.
I would like to begin where the book ends. Roznai notes in his conclusion, and I agree, that the alleged paradoxical character of the very idea of an unconstitutional constitutional amendment disappears once the doctrine is "correctly construed" (p. 233). As long as the ordinary amending power (the secondary constituent power) is understood as distinct from the exclusive constitution-making power of the people (the primary constituent power), there is nothing paradoxical in noting that the former cannot be...