Should the Unconstitutional Constitutional Amendments Doctrine be Part of the Canon?

—David Landau, Florida State University College of Law

The concept of substantively unconstitutional constitutional amendments, for example in the Indian “basic structure” doctrine, presents one of the strangest puzzles in comparative constitutional law. It raises obvious and substantial problems from the standpoint of democratic theory, raising a kind of ultimate counter-majoritarian difficulty. The court using the doctrine effectively cuts off the last resort for an over-active judiciary: constitutional amendment.

At the same time, the doctrine seems to have strong pragmatic justifications, especially in places where constitutional amendment is easy. These justifications seem to be feeding its spread and the increasing sense that it is becoming part of the canon of comparative constitutional law. Some of my own recent work argues that the tools of constitutional change, constitutional amendment and replacement, can be used fairly easily for making regimes much less democratic than they initially are. Recent experiences in places like Hungary show that standard numerical protections (like super-majorities) against this kind of constitutional change are fragile. As Issacharoff for example argues, the unconstitutional constitutional amendments doctrine can be useful as a democratic reinforcement in the face of that kind of action. Yet the Hungarian Constitutional Court declined to use the amendment when faced with a constitutional amendment reducing the jurisdiction of the Court. It held that it lacked the power to discover immutable principles in the constitutional text. The ruling party, at any rate, proceeded to replace the entire constitution, rendering the doctrine as normally understood moot.

Some recent Colombian experiences would seem to support the value of the doctrine. The court has adopted a substitution of the constitution doctrine that has a similar shape to the Indian basic structure doctrine. In two presidential reelection cases involving President Alvaro Uribe’s attempts to amend the constitution in order to run for a second and then a third term (C-1040 of 2005 and C-141 of 2010), the Court held that a second term would not constitute a substitution of the constitution but a third term would. The reasoning of the latter decision stressed that having one person hold office for twelve years would undo lots of the horizontal constraints placed on presidential power by allowing the president to appoint many of those actors (judges, the attorney general, etc) who are supposed to control him. In other words, an amendment allowing a third term would substitute the constitution by breaking down key pieces of its structure. There is little doubt that this decision helped prevent a move that would have made Colombia significantly less democratic. Uribe had already consolidated a large amount of power over other institutions of state, and would have been able to go much further with an additional term. The use in this circumstance seems not only defensible, but also possibly pro-democratic.

Still, a number of important worries remain. First, the doctrine where used aggressively seems hard to cabin. Subsequent Colombian cases, for example, have expanded the doctrine into domains that are more difficult to justify. Almost 20 years after the Court decriminalized drug possession of a so-called “personal dose” by saying that a prohibition infringed on rights of personal autonomy, the Congress passed an amendment re-prohibiting it but providing for treatment rather than criminal penalties. A citizen challenged the amendment, holding that the prohibition substituted the constitution. In Decision C-574 of 2011, the Court held that it was inhibited from hearing the action because the citizen had not also included in the challenge those provisions that established the (non-criminal) consequences imposed on a violator of the norm. But it hinted that a full-fledged criminalization of a “personal dose” might indeed substitute the Constitution.

Further, in C-588 of 2009, the Court actually struck down a constitutional reform dealing with a seemingly technical and mundane issue, the civil service regime. The Court had wrangled with the Congress on several occasions on this point – the 1991 Constitution forces office-holders to be picked through merit-based competition, and Congress had on several occasions tried to protect incumbent office-holders from these competitions, which the Court had ruled unconstitutional. The constitutional amendment was the congressional response: the amendment provided that the Civil Service Board over a three-year period would allow incumbent civil servants to enter the permanent civil service regime without taking competitions or exams. The Court held that the amendment involved here was in tension with the generality and permanence desired in constitutions, and at any rate was at variance with a principle of the “administrative career path” linked to meritocracy and equality.  It thus struck the amendment down as a substitution of the constitution.

Finally, in a very recent case, C-288 of 2012, the Court heard a challenge to a constitutional amendment adding a principle of “fiscal sustainability” to the Constitution and obliging all state entities including the courts to pay attention to that principle.  It’s pretty clear that the constitutional amenders were concerned by the costliness of some judicial decisions enforcing constitutional rights and sought to rein these in. The Court upheld the amendment in question, but only after effectively reading it quite narrowly. It held that fiscal sustainability was a mere instrument for the attainment of other constitutional goals, and thus that it had to be subordinated to the enforcement of fundamental constitutional rights, rather than balanced against it. The Court adopted such a narrow read of the amendment because it held that a broader read would likely constitute a substitution of the constitution.

This subsequent practice suggests that it is hard to develop a limiting principle for the doctrine; the notion of fundamental constitutional principles is quite vague. Even in those Colombian and Indian cases where the doctrine seemed clearly justifiable, the courts had difficulty pinpointing exactly what principle was violated by the amendment at issue. The cases above are not clearly unjustifiable, but they do seem more difficult to defend. Even the fiscal sustainability amendment, read broadly, may have been a sweeping change but one that is reasonable and necessary in a democratic order. There may also be some tendency, the Indian experience suggests, to use the doctrine as a method of turf protection.

Further, there is the real-political problem that endangered democracies often also have embattled courts. Court decisions can be ignored, but more easily, courts can be packed. That appears to be, for example, what has happened in Hungary. Relying on fragile judicial institutions to defend embattled democracies may turn out to be a poor choice. The doctrine may be least likely to work precisely when it is necessary.

Finally, there is a theoretical problem at the level of justifying the existence of the doctrine. The Colombian Court defends the substitution of the constitution idea by stating that it does not cut off all avenues of change, but merely routes particularly important matters to the correct route – constitutional replacement by the “people”, via constituent assembly. Similar defenses have been suggested by scholars. But these defenses seem to assume a neat division between constitutional amendment, on the one hand, which is liable to abuse by powerful actors, and constitutional replacement, which reflects the authentic will of the people. No such division exists in practice. As Hungary, Venezuela, and other experiences suggest, constitutional replacement is also part of the toolkit of would-be autocrats. Indeed, it may be a particularly efficient way to achieve their goals. Without also making constitutional replacement more difficult than it generally is, the unconstitutional constitutional amendments doctrine may achieve less than one would hope. Moreover, we lack a reliable metric for distinguishing genuine exercises of the people’s will from fake or manipulated exercises. That question may be one of the more important tasks in constitutional theory, along with the more general problem of making constitutionalism more robust against abusive methods of constitutional change.

Suggested Citation: David Landau, Should the Unconstitutional Constitutional Amendments Doctrine be Part of the Canon?, Int’l J. Const. L. Blog, June 10, 2013, available at: http://www.iconnectblog.com/2013/06/should-the-unconstitutional-constitutional-amendments-doctrine-be-part-of-the-canon/.