An Unamendable Constitution?

1. Front Matter

   Pages i-ix

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2. The Forms of Unamendability

   • Richard Albert, Bertil Emrah Oder

   Pages 1-26

3. The Legitimacy and Limits of Unamendability

   1. Front Matter

      Pages 27-27

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   2. Necrocracy or Democracy? Assessing Objections to Constitutional Unamendability

      • Yaniv Roznai

      Pages 29-61

   3. A Constitution for Eternity: An Economic Theory of Explicit Unamendability

      • Konstantinos Pilpilidis

      Pages 63-87

   4. Conventions of Unamendability: Covert Constitutional Unamendability in (Two) Politically Enforced Constitutions

      • Gert Jan Geertjes, Jerfi Uzman

      Pages 89-121

   5. Credible Commitment or Paternalism? The Case of Unamendability

      • Stephan Michel, Ignacio N. Cofone

      Pages 123-145

4. Unamendability Around the World

   1. Front Matter

      Pages 147-147

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   2. Constitutional Falsehoods: The Fourth Judges Case and the Basic Structure Doctrine in India

      • Chintan Chandrachud

      Pages 149-168

   3. Unamendability in Israel: A Critical Perspective

      • Mazen Masri

      Pages 169-193

   4. Eternal Provisions in the Constitution of Bangladesh: A Constitution Once and for All?

      • Ridwanul Hoque

      Pages 195-229

   5. Unamendability as a Judicial Discovery? Inductive Learning Lessons from Hungary

      • Fruzsina Gárdos-Orosz

      Pages 231-258

   6. Amending the Unamendable: The Case of Article 20 of the German Basic Law

      • Serkan Köybaşı

      Pages 259-280

   7. Debating Unamendability: Deadlock in Turkey’s Constitution-Making Process

      • Oya Yegen

      Pages 281-311

   8. The Unamendability of Amendable Clauses: The Case of the Turkish Constitution

      • Tarik Olcay

      Pages 313-343

   9. Brazil in the Context of the Debate Over Unamendability in Latin America

      • Juliano Zaiden Benvindo

      Pages 345-364

   10. Unamendable Constitutional Provisions and the European Common Constitutional Heritage: A Comparison Among Three Waves of Constitutionalism

       • Valentina Rita Scotti

       Pages 365-390

This book examines the subject of constitutional unamendability from comparative, doctrinal, empirical, historical, political and theoretical perspectives. It explores and evaluates the legitimacy of unamendability in the various forms that exist in constitutional democracies.

Modern constitutionalism has given rise to a paradox: can a constitutional amendment be unconstitutional? Today it is normatively contested but descriptively undeniable that a constitutional amendment—one that respects the formal procedures of textual alteration laid down in the constitutional text—may be invalidated for violating either a written or unwritten constitutional norm. This phenomenon of an unconstitutional constitutional amendment traces its political foundations to France and the United States, its doctrinal origins to Germany, and it has migrated in some form to all corners of the democratic world. One can trace this paradox to the concept of constitutional unamendability. Constitutional unamendability can be understood as a formally entrenched provision(s) or an informally entrenched norm that prohibits an alteration or violation of that provision or norm. An unamendable constitutional provision is impervious to formal amendment, even with supermajority or even unanimous agreement from the political actors whose consent is required to alter the constitutional text. Whether or not it is enforced, and also by whom, this prohibition raises fundamental questions implicating sovereignty, legitimacy, democracy and the rule of law.

• Constitutionalism
• Constitutional Change
• Necrocracy or Democracy
• Constitution of Eternity
• Explicit Unamendability
• Politically Enforced Constitutions
• Unamendable Constitutional Provisions
• Constitutional Amendments
• Eternal Provisions
• Constitution Once and For All
• Unamendable Core of the Constitution
• European Common Constitutional Heritage
• Constitution-Making Process

• School of Law, The University of Texas at Austin, Austin, USA

  Richard Albert

• Law School, Koç University, Sarıyer, Turkey

  Bertil Emrah Oder

Richard Albert is Professor of Law at the University of Texas at Austin. He writes about constitutional change, including amendment, replacement, interpretation and revolution. His publications have been translated into Chinese, Hungarian, Portuguese, Russian and Spanish. He is author of "Formas y función de la enmienda constitucional" (Externado 2017) and co-editor of "Canada in the World: Comparative Perspectives on the Canadian Constitution" (Cambridge 2017) and "The Foundations and Traditions of Constitutional Amendment" (Hart 2017). He is also co-editor of the new Oxford Series in Comparative Constitutionalism, co-editor of the Routledge Series on Comparative Constitutional Change, book reviews editor for the American Journal of Comparative Law, co-editor of I-CONnect, and chair-elect of the AALS Section on Comparative Law. A former law clerk to the Chief Justice of Canada, he holds law and political science degrees from Yale, Oxford and Harvard.
 
Bertil Emrah Oder is Dean and Professor of Constitutional law at Koç University Law School. She is an expert in comparative constitutional law, European Union law and international human rights law. Dean Oder holds memberships in the International Association of Constitutional Law, the International Society of Public Law, the Constitution Builders Network, the German Turkish Colloquium for Public Law, the International Law Association ILI-Istanbul, and is a founding member of the Association for Research and Application of Constitutional Law. She has served as consultant of UN Women and published two monographs: Constitution and Constitutionalism in the European Union (Anahtar Publishing: 2004) and Methods of Interpretation in Constitutional Adjudication (Beta Publishing: 2010). She has also published two textbooks: Cases & Materials on Constitutional Law for Active Learning (Beta Publishing: 2001) (co-authored) and Constitutional Law in Practice (Beta Publishing: 2008 and 2013) (coauthored). And she has published dozens of articles, editorials and book chapters on various subjects in public law. Fluent in English, German and Turkish, Dean Oder holds degrees from the University of Istanbul, Marmara University (Turkey), and the University of Cologne (Germany). 

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