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Kemal Gözler, Judicial Review of Constitutional Amendments:A Comparative Study, Bursa, Ekin Press, 2008, XII+126 p.
[http://www.anayasa.gen.tr/jrca-3.htm] (Dec. 20, 2008)

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Kemal Gözler

Uludağ University, Turkey

 

 

 

 

 

 

Judicial Review of Constitutional Amendments

A Comparative Study

 

 

  

 

 

 

 

Ekin Press

Bursa - 2008

 

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Copyright © 2008

Kemal Gözler

All Rights Reserved

 

 

Published by

Ekin Press

Burç Pasajı no. 27

Altıparmak, Bursa - Turkey

Telephone: 90.224.223 0437; Fax: 90.224.223 4112

Email: info@ekinyayinevi.com

 

 

First published in 2008

 

 

Printed in Turkey by

Şefik Matbaası, Marmara Sanayi Sitesi, M Blok, No.291

İkitelli, İstanbul - Turkey

 

 

Open Access

An online version of this book is available at http://www.anayasa.gen.tr/jrca.htm

 

                                                                                           

Library of Congress Cataloging in Publication Data

Gözler, Kemal, 1966-

Judicial review of constitutional amendments: a comparative study /
Kemal Gözler

p.;    cm.

Includes bibliographical references and index.

ISBN 978-9944-141-73-4

1. Judicial review.  2. Constitutional amendments. 
3. Constitutional courts. 4. Comparative law

K.3175.G69  2008

 

 

Dewey Class Number

347.012          [342.712]

 

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For Chapter 1, click here.

For Chapter 2, click here.

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Chapter 3

Can Constitutional Courts Review the Substance of Constitutional Amendments?

 

 

 

 

 

Having seen that constitutional courts in some countries (Austria, Germany, India, Ireland, Turkey, the United States), have competence to rule on the constitutional amendments and can review the formal and procedural regularity of constitutional amendments, the following question must now be asked: Can constitutional courts in these countries, going much further, review the substance of constitutional amendments? To answer this question affirmatively, the following question must first be answered: Are there any substantive limits on constitutional amendments? Without such limits, the judicial review of the substance of constitutional amendments is conceptually impossible because such a review consists in verifying whether the provisions of a constitutional amendment are compatible with these limits. If these limits do not exist, the judicial review of the substance of constitutional amendments will be logically impossible. Therefore, the question of whether or not the constitutional courts can review the substance of constitutional amendments can be answered as follows: If there are substantive limits in the constitution, the judicial review of the substance of constitutional amendments is possible, but if there are no such limits, such review is not possible. These two assertions merit further analyses.

I. If There Are Substantive Limits in the Constitution, the Judicial Review of the Substance of Constitutional Amendments
Is Possible

Different constitutions delineate expressly different substantive limits on the power of constitutional amendment. In other words, different constitutions provide some “immutable principles” by prohibiting the amendment of some of its provisions. For example,[1] under Article 89 of the 1958 French Constitution,[2] Article 139 of the 1947 Italian Constitution[3] and Article 288 of the 1975 Portugal Constitution,[4] the principle “republican form of government” cannot be object of a constitutional amendment. Likewise, Article 4 of the 1982 Turkish Constitution stipulates that “the provision of article 1 of the Constitution, establishing the form of the state as a Republic, the provisions in article 2 on the characteristics of the Republic, and the provision of article 3 shall not be amended, nor shall their amendment be proposed.”[5] Similarly, Article 79(3) of the 1949 German Basic Law prohibits the amendment of the principles laid down in Articles 1 and 20.[6] In the same way, in federal states, the amendments to the provisions relating to the federal form of the state and the protection of member states are forbidden. For example, under Article V of the United States Constitution, it is provided that “no state, without its consent, shall be deprived of its equal suffrage in the Senate.” Also, according to Article 79(3) of the German Basic Law, amendments “affecting the division of the Federation into Länder and their participation in the legislative process” are prohibited.[7] Similar restrictions exist in Article 128(6) of the 1900 Australian Constitution.[8]

The legal validity of these substantive limits is beyond the dispute because they were laid down in constitution by the constituent power. Therefore, the amending power, being a power created and organized by constitution, is bound by the limits provided by constitution. Consequently, in countries where the constitutional amendments can be reviewed with respect to their procedure by constitutional courts, they can be also reviewed with respect to their compatibility with these substantive limits. In other words, a constitutional court can examine the question of whether the substance of constitutional amendments conforms to the immutable provisions of constitution, as well as the question of whether the constitutional amendment was adopted by the majority of the parliament as provided in the constitution. There is not a legal difference between these two questions.

Before reviewing the examples of the judicial review of the substance of constitutional amendments from the case-law of German and Turkish Constitutional Courts, it is worthy to note that, although it seems to be contradictory, a constitution may impose substantive limits on constitutional amendment on the one hand, and on the other hand, it may expressly prohibit the review of the substance of constitutional amendments. For example, the 1982 Turkish Constitution imposes several substantive limits on constitutional amendments, providing that the first three articles of the Constitution cannot be amended.[9] But the same Constitution precluded the Constitutional Court from reviewing the substance of constitutional amendments.[10] In such a system, it is obvious that these substantives limits cannot be sanctioned by judicial review of constitutional court. In the absence of the constitutional court’s sanction, it is plausible to conclude that only amending power has the authority to determine the meaning of these limits.

Examples of the Judicial Review of the Substance of Constitutional Amendments: German and Turkish Constitutional Courts’ Case-law. – To illustrate the manner in which constitutional courts review the conformity of constitutional amendments with the explicit substantive limits (i.e., immutable provisions of constitution), the following cases from the German and Turkish Constitutional Courts will be analyzed.

A. German Constitutional Court

The German Federal Constitutional Court reviewed the substantial regularity of the constitutional amendment in the following five cases. But, prior to analyzing these cases, it seems proper to review the substantive limits imposed by the 1949 German Basic Law on constitutional amendments.

Substantive Limits. – Under Article 79(3) of the 1949 German Basic Law, constitutional amendments affecting the division of the Federation into Länders, their participation in the legislative process, or the principles enumerated in Articles 1 and 20 are be prohibited. Article 1 declares the principle of the inviolability of human dignity,[11] and Article 20 contains the fundamental principles regarding the political and social structure of the Republic of Germany, such as the democratic state, social and federal state, the binding force of the constitution and the laws and the defense of constitutional order.[12] In Germany, these principles cannot be modified thorough constitutional amendments, and for this reason, in Germany, Article 79(3) has been described as the “eternity clause.”[13]

1. Klass Case (Decision of December 15, 1970)[14]

Under Article 10 of the German Basic Law, the “(1) privacy of correspondence, posts and telecommunications is inviolable, [and] (2) [r]estrictions may only be ordered pursuant to a law.” The 17th Amendment, enacted on June 24, 1968,[15] inserted a sentence in the second paragraph of this Article providing that “where a restriction serves to protect the free democratic basic order or the existence or security of the Federation or a Land the law may stipulate that the person affected shall not be informed of such restriction and that recourse to the courts shall be replaced by a review of the case by bodies and subsidiary bodies appointed by Parliament.” In other words, this Amendment allowed for an infringement on the privacy of communications in order to protect the national security; and moreover, it replaced the process of judicial review with the parliamentary review of the legality of surveillance measures in certain national security cases.

This constitutional amendment was challenged before the German Federal Constitutional Court in the Klass case. It was asserted that the sentence inserted in the second paragraph of Article 10 of the Basic Law by the constitutional amendment of June 24, 1968 violated the fundamental principles which were declared as immutable by Article 79(3) of the Basic Law. More specifically, the limitation placed on the privacy of communications and the replacement of judicial review of surveillance measures with a control by an agency appointed by Parliament, infringe the fundamental principles of human dignity, the separation of powers, and the rule of law all which are immutable principles under Article 79(3) of the Basic Law. Despite three strong dissenting opinions, the Federal Constitutional Court rejected this argument and held that new version of Article 10(2) (i.e., the infringement on the privacy of communications and the preclusion of judicial review of surveillance measures) does not violate the immutable principles of the Basic Law, such as human dignity, the separation of powers, and the rule of law, enumerated in Article 79(3). According to the majority of the members of the Constitutional Court, first, the control of surveillance measures by an agency appointed by Parliament, rather than judicial review, is a sufficient guaranty for the legality of the surveillance procedures.[16] Secondly, according to the Court, Article 79(3) should be narrowly interpreted because it is an exception to the general rule, which “must not…prevent the legislator from modifying by constitutional amendment even basic constitutional principles in a system-immanent manner.”[17]

By adhering to a strict interpretation, the German Constitutional Court interpreted that Article 79(3) to mean that it prohibits the abolition of the substance of the existing constitutional order and the creation of a totalitarian regime by the formal legal means of amendment.[18] In other words, according to the Court, the substantial limits placed on the constitutional amend-ments consist of those explicitly mentioned in Articles 1 and 20. Since, the principle of rule of law is not explicitly mentioned in one of these two Articles, it is not intangible.[19] Thus, the restrictions placed on the privacy of correspondence and communication and the replacement the judicial review with a review by a body appointed by Parliament are not contrary to one of the immutable principles mentioned in Articles 1 and 20 which are referred to in article 79(3) of the Basic Law.[20]

It should be noted that there are three strong dissenting opinions[21] in that judgment. According to three judges[22] over eight the constitutional amendment should be annulled on the basis of Article 79(3). They argued that the amendment violates the principles of “human dignity” (Article 1) and “individual legal protection” which are further derived from the principle of the “separation of power” (Article 20(2)) which are immutable principles of the Constitution.[23]

2. “Land Reform I” Case (Decision of April 23, 1991)[24]

The case in question arose from the German reunification. Article 41(1) and Annex III of the German Reunification Treaty of August 31, 1990 provide that property expropriated and collectivized in the zone of Soviet occupation from 1945 to 1949 should not be restituted to its original owners. This provision of the Treaty was incorporated into Article 143(3)[25] of the Basic Law by the 36th Constitutional Amendment of September 23, 1990 (i.e. the unification amendment). Fourteen expropriated owners attacked the constitutionality of this provision before the Federal Constitutional Court by way of a “constitutional claim” (Verfassungsbeschwerde) and they argued that this constitutional amendment was contrary to Article 79(3) of the Basic law.

The Constitutional Court first examined the procedural regularity of the constitutional amendment and concluded that the constitutional amendment was enacted in conformity with the paragraphs 1 and 2 of Article 79 of the Basic Law. The Constitutional Court, later, reviewed the substance of the constitutional amendment, i.e., the conformity of the amended disposition (Article 143(3)) with the substantive limits provided for in Article 79(3) of Basic Law.[26] The Federal Constitutional Court held that the immutable principles enumerated in Article 79(3) were not affected by the provision of 143(3) (i.e., no return of property). According to the Court, the question of whether no return of property clause was contrary to Article 79(3) of the Basic Law was not posed because these expropriations were undertaken from 1945 to 1949, when the Basic Law is not yet in effect. In other words, the German Basic Law does not protect owners from expropriations imputable to foreign authorities, and in the instant case, the expropriations from 1945 to 1949 were imputable, not to the ex-German Democratic Republic, but to the Soviet occupation authorities. Therefore the expropriations which took place under Soviet occupation were not within the jurisdiction of the Federal Republic of Germany.[27] Finally, the immutable principles as provided by Article 79(3) of the Basic Law do not protect German citizens’ rights against the acts of a foreign state; thus, these immutable principles were not affected by a no return of property (Article 143(3)).

3. “Land Reform II” Case (Decision of April 18, 1996)[28]

This decision is on the same topic as the decision discussed above. In this case, although the complainants argued that Article 143(3) of the Basic Law violates the principle of equality because the restitution of property expropriated after 1949 was possible, whereas the restitution of property expropriated between 1945 and 1949 was excluded, the Federal Constitutional Court sustained its former decision. It reiterated that a constitutional amendment would only be deemed to be unconstitutional if it affected one of the immutable principles enumerated in Article 79(3) of the Basic Law. And according to the Court, “the principle of equality as protected by Article 3 of the Basic Law does not fall under the above-mentioned principles.”[29] Consequently, the Constitutional Court rejected the arguments of claimants and held that Article 143(3) of the Basic Law is constitutional.

4. Asylum Cases (Decision of May 14, 1996)[30]

Article 16a was incorporated into the Basic Law by the 39th Amendment on June 28, 1993. The second paragraph of this Article provides that the right to asylum “may not be invoked by anybody who enters the country from a member state of the European Communities or another third country where the application of the Convention relating to the Status of Refugees and the Convention for the Protection of Human Rights and Fundamental Freedoms is assured.”[31] It was argued that this provision is contrary to Article 1, relating to the protection of human dignity, which is an immutable principle pursuant to Article 79(3) of the Basic Law. The German Federal Constitutional Court rejected this argument and held that the right to asylum does not fall under the principle of human dignity (Article 1), and thus, Article 16a does not violate Article 79(3) of the Basic Law.

On the same day, the Federal Constitutional Court issued two other decisions concerning Article 16a. In its decision 2 BvR 1507/93, 2 BvR 1508/93, the Federal Constitutional Court held that the third paragraph of Article 16a providing for the possibility of rejecting an application for asylum by persons who come from a “secure State of origin”,[32] does not violate Article 79(3) of the Basic Law.[33] In its decision 2 BvR 1516/93, the Constitutional Court ruled that the fourth paragraph restricting the possibility of remaining in the Federal Republic of Germany during the proceedings of an asylum case, if the claim is manifestly ill-founded, is constitutional.[34]

5. Acoustic Surveillance of Homes (Decision of March 3, 2004)[35]

Article 13(3) of the Basic Law was modified by the 45th Amendment, dated March 26, 1998. The new version of Article 13(3)[36] allows the prosecution to employ, on the basis of judicial order, technical means for the acoustic surveillance of homes for the purpose of criminal prosecution. The claimants argued that that this provision violated the inviolability of human dignity,[37] as protected by Article 1, which is an immutable principle pursuant to Article 79(3) of the Basic Law. The German Constitutional Court rejected this argument and ruled that the acoustic surveillance of homes does not affect the inviolability of human dignity; therefore, it is in conformity with Article 79(3) of the Basic Law.[38]

B. Turkish Constitutional Court

Under Article 9 of the 1961 Turkish Constitution, “the provision of the Constitution establishing the form of the state as a republic shall not be amended nor shall any motion therefore be made.”[39] Accordingly, the 1961 Constitution placed only one substantial limitation on the amending power: the intangibility of republican form of state. As explained above,[40] the 1961 Turkish Constitution, prior to the 1971 Amendment, did not include a special provision concerning the question of whether constitutional amendments could be subject to judicial review. However, the Turkish Constitutional Court, in a decision dated June 16, 1970, No. 1970/31,[41] reviewed the procedural regularity of the Constitutional Amendment of November 6, 1969 and annulled it because of its procedural irregularity. In that decision, the Turkish Constitutional Court declared itself competent to review the substance of the constitutional amendment, but since this amendment was initially invalidated, due to its procedural irregularity, the Court held that it is not necessary to rule on the substantial regularity of that amendment.[42]

Decision of April 3, 1971, No. 1971/37[43]. – The Constitutional Amendment of April 17, 1970,[44] postponed the elections of Senate for one year and four months. The Turkish Workers Party submitted an application for annulment to the Constitutional Court and argued that this constitutional amendment was contrary to the constitution with respect to both its form and substance, but the Turkish Constitutional Court rejected this argument. The Court first examined the formal regularity of the constitutional amendment and did not find a formal or procedural irregularity.[45] Secondly, the Court discussed the question of whether it has the jurisdiction to review the constitutionality of constitutional amendments with respect to their substance. The Turkish Constitutional Court declared itself competent to review the conformity of the constitutional amendment with the republican form of state as protected by Article 9. Moreover, the Turkish Constitutional Court interpreted the concept of “republican form of state” broadly by providing that it encompassed the characteristics of the Turkish Republic, such as the rule of law, secularism, social state, and democracy. In the instant case, the Turkish Constitutional Court examined the conformity of the Constitutional Amendment of April 17, 1970 with the republican form of state, and concluded that the constitutional amendment (postponement of the senatorial elections for one year and four months) did not affect the intangibility of the republican form of state nor the fundamental principles of the Constitution.[46]

II. If There Are No Substantive Limits in the Constitution, the Judicial Review of the Substance of Constitutional Amendments Is Not Possible

If the substantive limits do not exist, constitutional courts cannot review the substance of constitutional amendments because they do not have the criterion by which they can evaluate the regularity of the substance of constitutional amendments. In other words, the judicial review of the constitutional amendments presupposes the existence of substantive limits on the amending power. In a constitutional system where there is no substantive limit on the constitutional amendments, there is no judicial power to review the substance of procedurally correct constitutional amendments.

In the writer’s view, the answer to this question of whether constitutional courts can review the substance of constitutional amendments is simple such as described in the above paragraph. But, when it comes to the substantive limits on the power to amend the constitution, some scholars are not satisfied with enumerating the substantive limits written in the text of the constitution and go much further, trying to find other substantive limits on constitutional amendments. They argue that there are some substantive limits which are not expressly written in the text of the constitution, however they are capable of imposing on the amending power. This kind of limits is called “implied”, “implicit” or “intrinsic substantive limits”[47] as opposed to “express” or “explicit substantive limits.”[48] These “alleged” implied or implicit substantive limits are not written at all in the text of the constitution; they are invented or discovered by some scholars of constitutional law. For that reason, Marie-Françoise Rigaux names these limits as “substantive limits inferred from a doctrinal interpretation.”[49]

A. The Arguments In Favor of the Existence of Implicit Substantive Limits

Several arguments are advanced in favor of the existence of so-called implied substantive limits on constitutional amendments. These arguments may be grouped into the following three categories:

1. Arguments Based on the Interpretation of the Word “Amend”

According to Walter F. Murphy, “the word amend, which comes from the Latin emendere, means to correct or improve; amend does not mean ‘to deconstitute and reconstitute’”.[50] William L. Marbury, in 1919, affirmed that “the power to ‘amend’ the Constitution was not intended to include the power to destroy it.”[51] Parting from this meaning of word “amend”, some scholars,[52] and even a Supreme Court,[53] asserted that the power to amend cannot replace one constitutional system with another or alter the basic structure or essential features of the constitution. Likewise, some authors argued that the constitution has an “inner unity”, “identity” or “spirit” and the amending power can not ruin this “inner unity”, “identity” or “spirit” of the constitution.[54] Finally it is also contented that the amending power can not modify entirely constitution.

Criticism. – These arguments are highly disputable. First, if the constitution does not prohibit its complete revision, the power to amend can modify the constitution completely. Indeed some constitutions, such as the Constitutions of Austria (Article 44), Spain (Article 168) and Switzerland (Article 139) expressly provided their total revision. Likewise, the concepts of “inner unity”, “identity” or “spirit” of the constitution are vague concepts which cannot be objectively determined. Constitutions do not define their “inner unity”, “identity” or “spirit” and they do not specify that their “inner unity”, “identity” or “spirit” is immutable.[55] These concepts are deprived of positive legal validity. Finally, it is difficult to infer a legal consequence from the grammatical interpretation of the word amend because if the constitution does not prohibit its total revision or preclude a constitutional provision from amendment, the amendment procedure may be used for one, two, three or all articles of the constitution (i.e., the amending power can replace one constitution with another). Moreover, naturally, this grammatical argument may be valid in English, but not valid in other languages. For example, for the word amendment, the 1958 French Constitution uses the word revision,[56] the 1947 Italian Constitution revisione,[57] the 1976 Portuguese Constitution revisão,[58] the 1978 Spanish Constitution reforma,[59] the 1949 German Constitution Änderung,[60] and the 1982 Turkish Constitution değişiklik.[61] The meaning of these terms is not exactly the same as that of amendment. For instance, Turkish word değişiklik means change rather than amendment.

2. Arguments Based on the Theory of Supra-Constitutionality[62]

Some scholars[63] argue that there are some principles which are superior to the constitution. If a constitutional amendment violates these principles, it will be null and void, and it should be invalidated by the constitutional court. Therefore, the supra-constitutional principles form the substantive limitations on the power to amend the constitution. But, when it comes to making the list of the supra-constitutional principles, the supporters of this theory do not agree; each of them draws a different list according to his own perceptions.

For example, in France, Serge Arné asserted that the following principles must be figured among the supra- constitutional principles: “The respect of human dignity”, “non-discrimination and solidarity”, “pluralism.”[64] But Stéphane Rials, another supporter of the supra-constitutionalty, gives these four principles as supra-constitutional, “(1) the constitution must be written; (2) the nation is the unique holder of supreme power and consequently constituent; (3) the principle of the separation of powers; and (4) the Fundamental rights are superior to the constituent will.”[65]

In Ireland, Roderick O’Hanlon defended the superiority of natural law over the constitution. According to O’Hanlon, “there is a law superior to all positive law, which is not capable of being altered by legislation, or even by a simple amendment of the Constitution itself.”[66] In O’Hanlon’s view, a constitutional amendment which offended a natural law value, such as the right to life of the unborn, can not have the “character of law.”[67]

In the United States, Walter Murphy argued that there are “prohibitions imposed by natural law” upon to amending power.[68] According to Murphy, “the classic natural-law theory that an unjust enactment, of whatever sort, is not law at all but a mere act of arbitrary will, incapable of imposing obligation” may be deployed in order to limit the amending power.[69] Jeff Rosen also argued that there are “natural rights limitations on the amendment power.”[70]

Criticism. – The theory of supra-constitutionality is highly problematic and controversial. Without accepting the natural law theory, it is impossible to admit to the legal validity of     supra-constitutional principles because they do not have a textual basis. Whatever the intellectual worth of natural law may be, this theory cannot, in this research, be admitted because it is impossible to construct a theory of the judicial review of constitutional amendments on the premises of the natural law.

Even if the theory of the existence of supra-constitutional principles were accepted for one moment, it would be impossible to objectively determine these principles because everybody will define and determine these principles according to his or her doctrinal preferences, profiting from the fact that they do not have textual sources. Indeed, as already observed, the advocates of the existence of supra-constitutional principles do not agree on the list of such principles. This demonstrates that, even if the existence of these principles is accepted, they cannot be used as reference norm in the judicial review of the constitutional amendments because they are indeterminable. In this situation, the review of the conformity of constitutional amend-ments with supra-constitutional principles would be a usurpation of amending power by the constitutional court.

3. Arguments Based on the Theory of Hierarchy
between Provisions of the Constitution[71]

Some scholars[72] asserted that the norms of a constitution do not have the same legal value. There may be a hierarchy among the different provisions of the same constitution; some provisions of the constitution may be superior to the other provisions of the constitution. The power to amend cannot modify the hierarchically superior provisions of the constitution. Thus these provisions constitute substantive limits on constitutional amendments. In other words, some fundamental norms of the constitution are so fundamental and sacrosanct that they are beyond the competence of the amending power. It is generally asserted that the constitutional provisions relating to the human dignity,[73] some or all fundamental rights, the basic principles of the state, such as democratic state, rule of law, social state, federalism or unitary state, popular sovereignty are superior to other provisions of the constitution. For example, Robert Badinter, the ex-president of the French Constitutional Council, in a colloquium, argued that, “there are, in our constitutional systems, intangible liberties that the constituent power cannot remove.”[74] Dominique Turpin affirmed that human rights, such as liberty, propriety, personal security, and resistance to oppression are superior to other constitutional rights, therefore they are cannot be abolished by the amending power.[75] Maryse Baudrez asserted that “all constitutional provisions concerning human rights cannot be revised.”[76] Olivier Beaud contented that the provisions of the Constitution concerning the popular sovereignty are superior to the other provisions of the Constitution, therefore the amending power cannot modify these provisions.[77]

Criticism.– Undoubtedly, there may be a hierarchy between provisions of the constitution from a purely moral or politic point of view. For example, it can be asserted that Article 7 of the 1999 Swiss Constitution providing that “human dignity is to be respected and protected” is more important than Article 88 of the said Constitution stipulating that “the Federation establishes principles on networks of footpaths and hiking trails.” But from a legal point of view, there is no hierarchy between these two articles of the Swiss Constitution. Articles 7 and 88 are two provisions which are contained in the same text, and which are laid down by the same constituent power, and thus, they have the same legal value.

In the constitutions examined in this monograph, there is absolutely no provision stipulating that one part or one provision of the constitution is superior to the other parts or provisions of the constitution. Therefore, the theory of the existence of the hierarchy between constitutional norms is baseless. This theory, like the theory of supra-constitutionality, is deprived of positive legal value. As a result, this theory is also untenable without accepting the existence of the natural law.

A constituent power had the possibility of precluding some provisions of the constitution from being amended. As explained above,[78] Articles 1 and 20 of the German Basic Law, and Articles 1-3 of the 1982 Turkish Constitution are excluded from amendment. The fact that a constituent power did not preclude some constitutional provisions from being amended means that it empowered the amending power to modify all provisions of the constitution. Similarly the fact that a constituent power prohibited the amendment of only some constitutional provisions means that it allowed the amending power to modify all provisions of the constitution, except the amendment of those which are prohibited. Therefore one cannot assert that not only the provisions which are precluded from amendment, but also those which are related to a basic value, such as human rights, the rule of law, social state, popular sovereignty, and so on, are beyond of amending power. In other words, if the constitution prohibited the amendment of only one or some of its provisions, the other provisions would be modifiable by amending power.

In sum, from a legal point of view, it is impossible to establish a hierarchy between the provisions of the same constitution. Between the provisions of the same constitution, there may be not a hierarchical relationship, but a relationship of priority/ posteriority with regard to their effective date, or a relationship of specialty/generality with regard to their extent. If there were a contradiction between the two provisions of the same constitution, the contradiction would be solved according to the principles of lex posterior derogat legi priori and lex specialis derogat legi generali.

If in a constitution there are not immutable provisions (i.e., explicit substantive limits), all provisions of the constitution are modifiable by amending power. Therefore in a country where there are no substantive limits written in the text of the constitution, constitutional courts cannot review the substance of the constitutional amendments. A constitutional amendment enacted in conformity with the constitution which is in effect has the same legal force as the constitution itself. In other words, a provision amended or altered by way of a constitutional amend-ment becomes part of the constitution. This provision holds, in the hierarchy of norms, the same rank as the other provisions of the constitution. Consequently it is logically impossible to conceive a review of the constitutionality of constitutional amendments because there can be no criterion for this review.

B. Case-Law of Constitutional Courts
Rejecting the Existence of Implicit
Substantive Limits

The United States Supreme Court, the Irish Supreme Court and the German Constitutional Court (after 1970) rejected the existence of the implicit substantive limits on constitutional amendments. According to these courts, there are no substantive limits imposed on the amending power, other than those which are written expressly in the text of the Constitution.

1. The United States Supreme Court

As observed above,[79] the United States Supreme Court, in Hollingsworth v. Virginia,[80] National Prohibition Cases,[81] Dillon v. Gloss[82] and United States v. Sprague[83] reviewed the formal and procedural regularity of constitutional amendments. However, the U.S. Supreme Court never reviewed the substance of constitutional amendments. Indeed, in the U.S. Constitution, there is only one express substantive limitation on the amending power: “No state, without its consent, shall be deprived of its equal suffrage in the Senate.”[84] Therefore, except for this limitation, in the United States, the judicial review of constitutional amendments is logically impossible, due to lack of substantive limits.

However in the United States, during the 1920s and on the occasion of the Eighteenth Amendment, a controversy arose on the existence of the implicit substantive limits on the amending power. Some authors[85] have argued that there are some “implied” or “intrinsic” substantive limits on the amending power other than the substantive limit (equal suffrage of states in the Senate) provided expressly by Article V; but others[86] denied this thesis. Finally, the U.S. Supreme Court, in the National Prohibition Cases, rejected the thesis of the existence of implicit substantive limits on the amending power.

In the National Prohibition Cases (State of Rhode Island v. Palmer),[87] it was argued that not only the procedure by which the Eighteenth Amendment was adopted, but also its substance is contrary to the Constitution because, allegedly, this amendment “deprived the states of their police powers secured by the Tenth Amendment and thereby altered the Constitution so fundamentally as to be not an ‘amendment’ but a first step towards destruction.”[88] It was also argued that this Amendment “was a mere ‘addition’ and not an ‘amendment’, because it was not germane to anything in the original Constitution.”[89] The Supreme Court clearly rejected this argument in announcing the following conclusions:

[…] (4) The prohibition of the manufacture, sale, transportation, importation and exportation of intoxicating liquors for beverage purposes, as embodied in the Eighteenth Amendment, is within the power to amend reserved by article 5 of the Constitution.

(5) That amendment, by lawful proposal and ratification, has become a part of the Constitution, and must be respected and given effect the same as other provisions of that instrument.[90]

After the National Prohibition Cases (1920), until now, in the United States, the controversy on the existence of the implicit limitations on the amending power continued. On different occasions, such as with the flag burning issue, some authors[91] contented that there were certain implied limitations on the amending power; but others[92] rejected this thesis. But until now, the contention of the existence of implicit limitations was not invoked in a legal case before the U.S. Supreme Court, and therefore, the Supreme Court did not rule on this issue.

2. Irish Supreme Court

The Supreme Court of Ireland had the opportunity to review the constitutionality of the constitutional amendments in the State (Ryan) and Abortion Information cases.

In State (Ryan) v. Lennon (1935)[93], the plaintiff argued that Article 2A, which inserted by the 17th Amendment (October 17, 1931), in the Constitution of the Irish Free State of 1922, was invalid.[94] The Supreme Court rejected this claim and held that the Constitution of 1922 gave the Parliament the power to amend the Constitution, but it did not impose any substantive limitations on the Parliament’s amending power. It can, therefore, be concluded that, the amendment is valid and its substance is not subject to review.[95]

In Ireland, the issue of the constitutionality of constitutional amendments raised again after the Thirteenth and Fourteenth Amendments, which were adopted by referendum in November 1992, guaranteed the right to obtain information about abortion services available abroad and the freedom to travel for this purpose. Relating to these amendments, Roderick O’Hanlon asserted that the right to life of the unborn, as a natural law value, is superior to any positive law, and thus the Thirteenth and Fourteenth Amendments, which infringed upon this right, should be deemed invalid.[96] In Abortion Information Case (1995),[97] “the counsel for the unborn” made an argument similar to the O’Hanlon argument. He argued that “the natural law is the foundation upon which the Constitution was built and ranks superior to the Constitution, [such] that no provision of the Constitution… can be contrary to Natural Law, and if it is, [it] cannot be enforced.”[98] His reasoning was that since the constitutional amendment relating to obtaining information on abortions violates the natural law, it is invalid.[99] The Supreme Court of Ireland rejected this argument in stating clearly that “the Court does not accept this argument.”[100] Thus, according to the Supreme Court of Ireland, as observed by Rory O’Connel, “there is no power to review the substance of a constitutional amendment, provided it is carried out in a procedurally correct manner.”[101]

As examined above,[102] in 1999, the Irish Supreme Court, in the Riordan v. An Taoiseach case, ruled that it is incompetent to review the constitutionality of constitutional amendments.[103]

3. German Constitutional Court

As explained above,[104] in Germany, there are express substantive limits on constitutional amendments provided by Article 79(3) of the 1949 German Basic Law, and as observed above, the German Constitutional Court reviewed the conformity of the constitutional amendments with these substantive limits. However, as will be explained below,[105] the German Constitutional Court, in the 1950s, in the Southwest Case (1951)[106] and in the Article 117 Case (1953),[107] affirmed, but only as obiter dictum, the existence of some substantive limitations on the amending power, other than those expressly provided in Article 79(3). But after 1970, rejecting the doctrine of the existence of implicit substantive limitations, the German Constitutional Court referred only to the express limitations provided by Article 79(3), in the cases in which the constitutionality of constitutional amendments was reviewed.[108]

C. Case-Law of Constitutional Courts
Accepting the Existence of Implicit
Substantive Limits

However some constitutional courts, such as German Constitutional Court (in the 1950s, but only as obiter dictum), the Indian Supreme Court and the Turkish Constitutional Court (under 1961 Constitution) held that the amending power is limited not only by the substantive limits explicitly written in the text of the constitution, but also by those which are not provided by the constitution. And according to these courts, they can review the conformity of constitutional amendments with these substantial limits which are not expressly written in the text of the constitution. The case-law of these courts will be analyzed below.

1. The German Federal Constitutional Court in the 1950s

The theory of the existence of implicit substantive limits on constitutional amendments has its origins in the German Federal Constitutional Court’s two decisions in the 1950s.

a) Southwest Case (Decision of October 23, 1951).– The German Federal Constitutional Court, in this case, held that

a constitution reflects certain overarching principles and fundamental decisions to which individual provisions are subordinate… [A]ny constitutional provision must be interpreted in such a way that it is compatible with those elementary principles and with the basic decisions of the framers of the Constitution.[109]

Moreover in this decision, the Federal Constitutional Court noted that it agrees with the following statement made by the Bavarian Constitutional Court:

That a constitutional provision itself may be null and void is not conceptually impossible just because it is a part of the Constitution. There are constitutional principles that are so fundamental and so much an expression of a law that has precedence even over the Constitution that they also bind the framers of the Constitution, and other constitutional provisions that do not rank so high may be null and void because they contravene these principles.[110]

As the above statements demonstrate, the Federal Constitutional Court asserted the superiority of the overarching and fundamental principles of the Constitution over other constitutional provisions. Thus, the Federal Constitutional Court held that there are substantive limits other than those laid down in Article 79(3), and it can review the conformity of constitutional amendments with these limits.[111]

As is explained above,[112] it is impossible to establish a hierarchy between the provisions of the same constitution. Hopefully, the Federal Constitutional Court affirmed the existence of the hierarchy between the constitutional norms as only obiter dictum,[113] and did not invalidated a constitutional amendment on the ground that it violates these “overarching principles.”

b) Article 117 Case (Decision of December 18, 1953).– Two years later, the German Federal Constitutional Court, in the so-called Article 117 Case (1953),[114] affirmed, still as obiter dicta, that there are “higher-law principle of justice” and in event “that a provision of the Basic Law exceeded the outer limits of the higher-law (‘übergesetzliche’) principle of justice (‘die äußersten Grenzen der Gerechtigkeit’), it would be the Court’s duty to strike it down.”[115] Thus, in the Article 117 Case, it is suggested “that there exists a range of ‘super positive’ norms variously referred to as the ‘natural law’ or ‘justice’.”[116]

The theory affirmed in this judgment is more than a hierarchy between constitutional norms, it is a theory of supra-constitutionality. As explained above[117], without accepting the natural law theory, it is impossible to admit that some natural law principle restricts the amending power. As in the Southwest Case, the Federal Constitutional Court affirmed this as obiter dictum, and did not invalidate a constitutional amendment on this basis. Therefore the theory of limitation of amending power by higher-law principle of justice originated by the German Federal Constitutional Court only has a doctrinal concern.

After 1953, the German Constitutional Court declined to refer to supra-positive principles as implicit limits on constitutional amendments. The attitude of the German Constitutional Court in Southwest Case (1951) and Article 117 Case (1953), may be explained as “a reaction against the earlier positivist justifications for the Nazi regime.”[118]

2. Supreme Court of India

The Supreme Court of India, in the Golaknath, Kesavananda, Indira Nehru Gandhi, Minerva Mills and Waman Rao cases, held that there are some implicit limitations on the amending power and that constitutional amendments which violate these limitations are invalid.

In the Golaknath v. State of Punjab case (1967),[119] the constitutionality of 17th Amendment (1964) was challenged. By a 6 to 5 majority judgment, the Supreme Court held that

fundamental rights cannot be abridged or taken away by the amending procedure in Art. 368[120] of the Constitution. An amendment to the Constitution is “law” within the meaning of Art. 13(2)[121] and is therefore subject to Part III[122] of the Constitution.[123]

However the court declared that the constitutional amendments in this case are in force[124] through the application of the doctrine of “prospective overruling” evolved by the courts in the United States of America.[125]

This decision is highly controversial because it presupposes the superiority of the Part III (Articles 12-36) of the Constitution over the other parts of the same Constitution. As we explained above,[126] it is impossible to establish a hierarchy between the parts of the same constitution. In the Indian Constitution, there is absolutely no provision stipulating that Part III of the Constitution is superior to other parts, nor that the provisions of this Part are excluded from amendment.

On the other hand, the interpretation of word “law” in Article 13(2)[127] by the Supreme Court is highly disputable for two reasons. First, the word “law” in constitutional provisions refers to ordinary legislation, not constitutional amendments because the constitutional provisions other than that which regulates the amendment procedure are addressed to ordinary legislative power, and not to amending power. Secondly, if the interpretation of the Court is accepted, there will be no difference between legislative power and amending power. But, in the Indian Constitution legislative power and amending power are not the same; the former is regulated by Articles 107-111 and the latter by Article 368. It is the ordinary legislative power, but not the amending power, which must comply with the provisions of the Constitution. In the Indian Constitution there are not substantive limitations on amending power, therefore the amending power has competence to amend any provisions of the constitution, including the Part III of the Constitution.

Indeed, six year later, in the Kesavananda Bharati v. State of Kerala case (1973),[128] the Supreme Court reversed its own previous decision in Golaknath, in declaring that

the decision of the majority in Golakhnath that the word “law” in article 13(2) included amendments to the Constitution and the article operated as a limitation upon the power to amend the Constitution in Article 368 is erroneous and is overruled.[129]

Moreover, in the Kesavananda case, the Supreme Court rejected the thesis of intangibility of fundamental rights (Part III of the Indian Constitution) which was affirmed in Galoknath and held that “the power of amendment … includes within itself the power to add, alter or repeal the various articles of the Constitution including those relating to fundamental rights.”[130]

The Supreme Court of India, in Kesavananda, overruled the doctrine of the superiority of the Part III (fundamental rights) of the Constitution over the other parts of the Constitution, but the same Court developed another doctrine, the doctrine of basic structure, which is also deprived of textual basis.

In 1973, 13 judges of the Supreme Court, in the Kesavananda Bharati v. State of Kerala case,[131] examined the validity of the 24th, 25th and 29th amendments. The Court, by a majority of 7 to 6, ruled that “the power to amend does not include the power to alter the basic structure, or framework of the Constitution so as to change its identity.”[132]

The Supreme Court of India confirmed its “basic structure doctrine” in the Indira Nehru Gandhi v. Raj Narain case (1975).[133] In this case, the Supreme Court invalidated the 39th Amendment (1975) to the Constitution on the ground that it violated the basic structure of the Constitution.[134]

After these decisions, in 1976, to extirpate the basic structure doctrine,[135] the Indian Parliament retailed[136] with the 42nd Amendment which added the clauses 4 ad 5 to Article 368. Clause 4 expressly precluded the judicial review of constitutional amendments, and clause 5 specified that the amending power is not limited. The Supreme Court of India, in the Minerva Mills Ltd. v. Union of India case (1980), invalidated the 42nd Amendment on the ground that “a limited amending power is one of the basic features of Indian Constitution and therefore, the limitations on that power cannot be destroyed.”[137]

The Supreme Court of India, in the case of Waman Rao v. Union of India (1981), reviewed the substance of the First and Fourth Amendments which were enacted respectively in 1951 and 1955.[138] In this case, the Supreme Court also reaffirmed its basic structure doctrine. But this time, it upheld the validity of the challenged constitutional amendments on the basis that these amendments “do not damage any of the basic or essential structure of the Constitution or its basic structure and are valid and constitutional being within the constituent power of the Parliament.”[139]

Criticism. – The doctrine of “basic structure of the Constitution”[140] is very controversial. This doctrine does not have a textual basis. There is not, in the Indian Constitution, a provision stipulating that this constitution has a basic structure and that this structure is beyond the competence of amending power. Therefore the limitation of the amending power by the basic structure of the Constitution is deprived of positive legal validity. Moreover, not having its origin in the text of the constitution, the concept of the “basic structure of the Constitution” cannot be defined. What constituted the basic structure of the Constitution? Which principles are or not included in this concept? An objective and unanimous answer cannot be given to this question. Indeed, in the Kesavananda Bharati case, the majority of judges who admit the existence a “basic structure of the Constitution” did not agree with the list of the principles included in this concept. Each judge drew a different list.[141] If each judge is able to define the basic structure concept according to his own view, a constitutional amendment would be valid or invalid according to the personal preferences of the judges. In this instance, the judges will acquire the power to amend the constitution, which is given to the Parliament in Article 368 of the Constitution. For that reason, as noted by Anuranjan Sethi, the basic structure doctrine can be shown as a “vulgar display of usurpation of constitutional power by the Supreme Court of India.”[142] As illustrated in the case-law of the Indian Supreme Court, when there is no explicit substantive limitation on the amending power, the attempt by a constitutional court to review the substance of the constitutional amendments would be dangerous for a democratic system in which the amending power belongs to the people or its representatives, not to judges.

3. Turkish Constitutional Court

As explained above,[143] in the 1961 Turkish Constitution, there was only one substantive limit on the amending power: the immutability of the republican form of the State. But according to the Turkish Constitutional Court, under the 1961 Constitution, the amending power was limited not only by this explicit substantive limit, but also by other limits which are not expressly written in the text of the Constitution, such as spirit of the constitution, basic rights and freedoms, rule of law principle, requirements of contemporary civilization, and coherence of the constitution.

The Turkish Constitutional Court, in its decision of September 26, 1965, No. 1965/40,[144] affirmed, as obiter dicta, that, the amending power cannot abolish the Constitution and destroy the rule of law. According to the Court,

it is clear that the Constituent Assembly… adopted the Article 155 [amendment procedure] in order to enable only the amendments which are conform to the spirit of the constitution. The constitutional amendments which… destroy the basic rights and freedoms, rule of law principle, in one word, demolish the essence of the 1961 Constitution… cannot be made in application of the Article 155. [145]

In the decision of April 3, 1971, No. 1971/37, the Turkish Constitutional Court declared itself competent to review the conformity of constitutional amendments not only with respect to the intangibility of the republican form of the State, as provided by Article 9, but also with respect to the other principles which are not expressly written in the text of the Constitution.[146] The Court affirmed that constitutional amendments must be in conformity with the “requirements of contemporary civilization” and that they must not damage the “coherence and system of the constitution.”[147]

These decisions of the Turkish Constitutional Court are highly disputable. The principles or notions such as spirit of the constitution, requirements of contemporary civilization, and coherence of the constitution which the Constitutional Court made reference do not have a textual basis. The others, such as the rule of law, basic rights and freedoms have their basis in the Constitution, but their immutability is not provided by the Constitution. Therefore their validity cannot be accepted without admitting the natural law theory.

On the other hand, under the 1961 Constitution, the Turkish Constitutional Court interpreted the explicit substantive limit very broadly, (i.e. the immutability of the republican form of the State which is provided by the Constitution). As explained above, the Court included several principles, such as the rule of law, democratic state, social state, the secularism into this immutability. Therefore, these principles became implied limitations on the amending power. As explained above, this broad interpretation seems to be erroneous according to the maxim exceptio est strictissimae interpretationis.[148]

 

[Conclusion is after the footnotes]

 

 

 

 

Conclusion

 

  

 

The question of whether the constitutional amendments can be reviewed by constitutional courts can be answered in the following way:

If country’s constitution includes a provision concerning this question, whether the judicial review of the constitutional amendment is or is not permissible would be governed by this provision. If the constitution provided that the constitutional court can review the constitutionality of constitutional amendments, such a review would be possible. This hypothesis is illustrated by the Turkish, Chilean and Romanian Constitutions. But if the constitution expressly prohibits the judicial review of constitutional amendments, it would not be possible. This hypothesis is illustrated by the 1950 Indian Constitution as amended in 1976.

If the constitution (such as the Austrian, French, German, Hungarian, Irish, Slovenian, and the United States Constitutions) is silent as to the judicial review of constitutional amendments, such review is possible under the American model of judicial review because under such a system, in a legal case before the courts, the constitutionality of a constitutional amendment can be challenged by the parties claiming that the procedure by which the amendment has been adopted is contrary to the constitution or that its substance violates the limitations imposed on the constitutional amendments. The admission or rejection of this claim by the courts implies the judicial review of constitutional amendments, as illustrated by the case-law of the United States and Indian Supreme Courts.

Under the European model of judicial review, the judicial review of constitutional amendments is not possible, if there is not an express constitutional provision empowering the constitutional court to review constitutional amendments, because in that model, the competence of the constitutional court emanate only from the Constitution. This is confirmed by the case-law of the French Constitutional Council and the Hungarian and Slovenian Constitutional Courts. But, under the European model, some constitutional courts, such as the Austrian, German and Turkish Constitutional Courts, have declared themselves competent to review the constitutionality of constitutional amendments. According to these courts, constitutional amendments can be deemed to be “laws”, and consequently the courts can review their constitutionality, without any need to receive additional competence, because they already have competence to review the constitutionality of laws.

In the countries where the judicial review of the constitutional amendments is possible, the scope of this review must be determined. Can constitutional courts review the constitutionality of constitutional amendments with respect to both form and substance?

The constitutional courts, having declared themselves competent to review the constitutionality of constitutional amendments, can review the procedural and formal regularity of constitutional amendments. A review for procedural and formal regularity is straightforward because the constitution provides the exact conditions of form and procedure which must be followed for the enactment of a constitutional amendment. A constitutional amendment is only valid if it was enacted in conformity with these conditions. The United States Supreme Court (excepting Coleman v. Miller case), the Austrian Federal Constitutional Court, and the Turkish Constitutional Court have reviewed the formal regularity of constitutional amendments.

The judicial review of the substance of constitutional amendments is possible if there are, in the constitution, substantive limits on the amending power; but if there are not such limits, such review is not possible, because such a review consists in verifying whether the provisions of a constitutional amendment are compatible with these limits. If these limits do not exist, this review will be logically impossible. The German and Turkish Constitutions impose substantial limits on the amending power, by providing some immutable principles and provisions. Therefore in Germany and Turkey, the judicial review of the substance of constitutional amendments is possible. In fact, the German Constitutional Court has reviewed the conformity of constitutional amendments with the immutable principles enumerated in Articles 1 and 20 of the 1949 Basic Law. Likewise, the Turkish Constitutional Court, under the 1961 Constitution, reviewed the conformity of constitutional amendments with the intangibility of republican form of state.

When it comes to the substantive limits on the power to amend the constitution, some scholars are not satisfied with enumerating the substantive limits written in the text of the constitution and they argue that there are some substantive limits on constitutional amendments which are not written expressly in the text of the constitution. This kind of limits is called “implicit substantive limits” as opposed to “explicit substantive limits.” The theory of the existence of the implicit substantive limits on the amending power is highly problematic and controversial. Without accepting the natural law theory, it is impossible to admit to the legal validity of these “alleged” implicit substantive limits, because they do not have any textual basis.

The United States Supreme Court, the German Constitutional Court (after 1970), and the Irish Supreme Court have rejected the idea that there are implicit substantive limits on the power to amend the constitution. But the Indian Supreme Court has admitted the existence of the implicit substantive limits on the amending power. The Supreme Court of India, in the Golaknath v. State of Punjab case, affirmed that the amending power cannot alter the Part III (fundamental rights) of the Constitution. The same Court, in Kesavananda Bharati v. State of Kerala, Indira Nehru Gandhi v. Raj Narfain, Minerva Mills Ltd. v. Union of India, Waman Rao v. Union of India, held that the amending power cannot modify the “basic structure of the Constitution” and invalidated the constitutional amendments which violate this structure. The German Constitutional Court, in Southwest Case and Article 117 Case also asserted the existence of some implicit limits on the amending power, but it was only as obiter dicta, and the German Court has never invalidated a constitutional amendment on the basis that it violates the implicit substantive limits.

The conclusions reached in this monograph can be summarized in the following diagram. [Click here]

 

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Turpin, Dominique, Contentieux constitutionnel [Constitutional Jurisdiction] (P.U.F. 1986).

Vile, John R., The Case against Implicit Limits on Constitutional Amending Process, in Responding to Imperfection: The Theory and Practice of Constitutional Amendment 191 (Sanford Levinson ed., Princeton University Press, 1995).

Walsh, Ian, Between Scylla and Charybdis: The Supreme Court and the Regulation of Information Bill (1995), 7 Cork Online Law Review 10 (2003), http://www.ucc.ie/colr/2003vii.html (last visited Mar. 25, 2007).

 

II. Constitutions

Australia: Constitution (1900) (Australia), available at http://www. aph.gov.au/senate/general/constitution/chapter8.htm (last reviewed May 21, 2003).

Austria: Bundes-Verfassungsgesetz [B-VG] [Constitution] (Austria). An English translation of the 1920 Austrian Federal Constitution (Bundes-Verfassungsgesetz) is available in CODICES database of Venice Commission, at http://codices.coe.int; select Constitutions > English > Europe > Austria (last visited Mar. 20, 2007).

Chile: Constitución  [Const.] [Constitution] (1980) (Chile). An English translation of Chilean Constitution of 1982 is available at http://confinder.richmond.edu/admin/docs/Chile.pdf (last updated Apr. 19, 2005).

France: 1958 Constıtution (France), The original French text is available at http://www.elysee.fr/elysee/francais/les_institutions/ les_textes_ fondateurs/la_constitution_de_1958 /la_constitution_de_1958.21061.html, last visited Mar. 24, 2007). An English translation available at http://www.assemblee-nationale.fr/     english/8ab.asp> (last visited Mar. 21, 2007).

Germany: Grundgesetz [GG] [Constitution] (1949) (F.R.G). The Original German text is available at http://www.jura.uni-sb.de/BIJUS/grundgesetz/, (last visited Mar. 26, 2007). An English translation of the 1949 German Basic Law [Grundgesetz für die Bundesrepublik Deutschland] is available in CODICES database of Venice Commission, at http://codices.coe.int/; select Constitutions > English > Europe > Germany (last visited Mar. 20, 2007).

Hungary: Constitution of the Republic of Hungary (Act XX of 1949 as revised and restated by Act XXXI of 1989), Art. 32/A. An English translation of Hungarian Constitution is available in CODICES database of Venice Commission, at http://codices.coe. int; select Constitutions > English > Europe > Hungary (last visited Mar. 4 2007).

India: Constıtutıon (India) (1949), available at http://lawmin.nic. in/coi.htm  (last visited  Mar. 18, 2007).

Ireland: Irish Constitution (Bunreacht Na Héireann) [Ir. Const.,] (1937), available at http://www.taoiseach.gov.ie/index.asp?     docID=262 (last visited Mar. 6, 2007).

Italy: Costitutizione [Cost.] (1947) (Italy), The original Italian text available at http://www.quirinale.it/costituzione/costituzione.htm (last visited Mar. 24, 2007). An English translation available at http://www.oefre.unibe.ch/law/icl/it00000_.html (last visited Mar. 21, 2007).

Nepal: Nepalese Constitution of 1990 (An English translation of the Constitution of Nepal is available at http://www.oefre.unibe.ch/ law/icl/np00000_.html (last visited Mar. 23, 2007).

Norway: Norwegian Constitution of 1814 (An English translation of the Constitution of Norway is available at http://www.oefre. unibe.ch/law/icl/no00000_.html (last visited Mar. 22, 2007)

Portugal: Constituição da República Portuguesa [Cost.] (1975) (Portugal). The original Portuguese text is available at http://www.parlamento. pt/const_leg/crp_port/index.html, (last visited Mar. 15, 2007). An English translation is available at http://www.parlamento.pt/ingles/cons%5Fleg/crp_ing/index.html (last visited Mar. 15, 2007).

Romania: Constitution of Romania of 1991. An English translation is available in CODICES database of Venice Commission, at http://codices.coe.int>; select Constitutions > English > Europe > Romania (last visited Mar. 23, 2007).

Spain: Constitución Española [C.E.] (1978) (Spain). The original Spanish text available at http://www.senado.es/constitu/index. html (last visited Mar. 22, 2007). An English translation is available at http://www.senado.es/constitu_i/index.html

Turkey (1961):  Anayasa [Constitution] (1961) (Turkey). The original Turkish text is available at http://www.anayasa.gen.tr/ 1961ay.htm (last visited Mar. 24, 2007). For an the English translation of the 1961 Turkish Constitution, before amendment of 1971, see Constitution of the Turkish Republic (Sadık Balkan, Ahmet E. Uysal and Kemal H. Karpat trans., 1961), available at http://www.anayasa.gen.tr/1961constitution-text.pdf (last visited Mar. 20, 2007); (Mustafa Gerçeker, Erhan Yaşar and Orhan Tung trans., Directorate General of Press and Information 1978), available at http://www.anayasa.gen.tr/1961constitution-amended. pdf (last visited Apr. 3, 2006). 

Turkey (1982):  Anayasa [Constitution] (1982) (Turkey). The original Turkish text is available at http://www.anayasa.gen.tr/ 1982ay.htm, (last visited Mar. 24, 2007). An English translation of the 1982 Turkish Constitution is available at http://www. byegm.gov.tr/mevzuat/anayasa/anayasa-ing.htm (last visited Mar. 5, 2007).

 

Index

(References are to pages)

 

 

 

I. Index of Constitutional Provisions

 

Australia

Constitution of 1900

Article 128(6):  53

 

Austria

Constitution of 1920 (revised in 1929, reinstated in 1945

Article 44:  34, 36, 69

Article 44(3):  35, 37, 39

Article 140(1):  20, 23

 

Chile

Constitution of 1980

Article 82(2):  5

 

France

Constitution of 1958

Article 61:  15, 16

Article 89:  15, 52, 70

 

Germany

Constitution of 1949

Article 1:  55, 56, 62

Article 10:  56, 57

Article 10(2):  58

Article 13(3):  63, 64

Article 16a :  62

Article 16a(2):  62, 63, 64

Article 16a(3):  63

Article 41(1):  59

Article 79:  71

Article 79(1):  21, 53

Article 79(3):  53, 57, 62, 63, 64, 83, 86

Article 93:  20, 22

Article 93(1)(2):  22

Article 143(3):  60, 61

Articles 1 and 20:  55, 58, 76

17^th Amendment of June 24, 1968:  56

36^th Amendment of September 23, 1990:  60

39^th Amendment of June 28, 1993:  62

45^th Amendment of March 26, 1998:  63

 

Hungary

Constitution of 1949 (Act XX of 1949 as revised and restated by Act XXXI of 1989)

Article 1:  16

Article 2:  16

Article 32/A:  16

Constitutional Amendment adopted on October 14, 1997: 16

 

India

Constitution of 1950

Articles 12-36:  89

Article 13(2):  89

Article 368:  95

Article 368, Clause 4:  8

Article 386:  9, 88, 95

17^th Amendment:  88

24 ^th Amendment:  92

25^th Amendment:  92

29^th Amendment:  92

39^th Amendment:  92

42^nd Amendment:  9, 92

 

Ireland

Constitution of 1937

Article 2A:  81

Article 15, Section 4:  19

Article 34:  17

Article 46:  18, 19

Thirteenth Amendment:  81

Fourteenth Amendment:  81

Nineteenth Amendment:  18

Seventeenth Amendment:  81

Constitution of the Irish Free State of 1922:  81

 

Italy 

Constitution of 1947

Article 139:  52

Articles 138-139:  70

 

Portugal

Constitution of 1975

Articles 284-289:  71

Article 288:  52

 

Romania

Constitution of 1991

Article 148 (2):  7

Article 144(a) (in its original form in the Constitution of 1991):  6

Article 146(a) of the 2003 version of the Constitution:  6

 

Slovenia

Constitution of 1991

Article 160:  17

 

Spain

Constitution of 1978

Articles 166-169:  71

Article 168:  69

 

Switzerland

Constitution of 1999

Article 7:  75

Article 88:  76

Article 139:  69

 

 

Turkey

Constitution of 1961

Article 1:  44

Article 2:  43, 44, 46

Article 9:  64, 65, 66, 96

Article 38(2) (amended 1971):  43

Article 68 :  40

Article 138:  42, 43

Article 137 (amended 1971):  45

Article 144 (amended 1971):  44

Article 147 (amended 1971):  4, 20, 24, 42, 45

Article 155:  41, 46

 

Constitution of 1982

Article 148:  5, 47, 48, 54

Article 175:  71

Article 4:  52, 53, 54

Articles 1-3:  76

 

United States of America

Constitution of 1787

Article I, § 7, cl. 3:  29

Article V:  30, 53

Eighteenth Amendment:  29, 30, 31

Eleventh Amendment:  29

 

II. Index of Cases

Austria

Verfassungsgerichtshofes (Federal Constitutional Court)

Decision of December 12, 1952:  35-37

Decision of June 23, 1988:  37-38

Decision of September 29, 1988:  38

Decision of March 10, 2001:  38-39

 

Europe

European Court of Human Rights

Klass v. Germany:  58

 

France

Conseil Constitutionnel (Constitutional Council)

Decision no. 1962-20 DC, November 6, 1962:  14

Decision no. 2003-469 DC, March 26, 2003:  14-15

 

Germany

Bundesverfassungsgerichts (Federal Constitutional Court)

Acoustic Surveillance of Homes (Decision of March 3, 2004):  63-64

Article 117 Case (Decision of December 18, 1953):  86

Asylum Cases (Decision of May 14, 1996), 62-63

Klass Case (Decision of December 15, 1970):  56-58, 83

Land Reform I Case (Decision of April 23, 1991):  59-61

Land Reform II Case (Decision of April 18, 1996):  61-62

Länder Citizenship (Decision of December 12, 1952):  35

Southwest Case (Decision of October 23, 1951):  84-87

 

Hungary

Hungarian Constitutional Court

Decision of Feb. 9, 1998, No. 1260/B/1997, 2/1998:  16

 

India

Supreme Court of India

Golaknath v. State of Punjab (1967):  88-90

Indira Nehru Gandhi v. Raj Narain (1975):  92

Kesavananda Bharati v. State of Kerala (1973):  9, 69, 91-92, 94

Minerva Mills Ltd. v. Union of India (1980):  8, 68, 92-93

Waman Rao v. Union of India (1981):  93

 

Ireland

Supreme Court of Ireland XE "Supreme Court of Ireland"  

Abortion Information Case (1995):  82

Riordan v. An Taoiseach (1999):  18, 19, 82

State (Ryan) v. Lennon (1935): 82

 

Romania

Constitutional  Court

Decision No. 148 of April 16, 2003:  7

Decision No. 686 of September 30, 2003:  7

 

 

Slovenia

Constitutional Court

Decision of April 11, 1996, No.U-I-332/94:  17

 

Turkey

Constitutional Court

Decision of September 26, 1965, No. 1965/40:  96

Decision of April 3, 1971, No. 1971/37:  24, 41-42, 65, 96

Decision of June 16, 1970, No. 1970/31:  24, 40-41, 65

Decision of April 15, 1975, No. 1975/87:  42-43

Decision of March 23, 1976, No. 1976/19:  43-44

Decision of October 12, 1976, No. 1976/46:  43-44

Decision of January 28, 1977, No. 1977/4:  44-45

Decision of September 27, 1977, No. 1977/117:  45

Decision of June 8, 1987, No. 1987/15:  47-48

 

United States of America

Supreme Court

Coleman v. Miller (1939):  32

Dillon v. Gloss (1920):  30-31

Hollingsworth v. Virginia (1798):  29

National Prohibition Cases (State of Rhode Island v. Palmer) (1920):  11, 29-30, 78, 79, 80

United States v. Sprague (1931):  11, 31-32, 78

IV. Index of Names

Andhyarujina, T. R.,  95

Andrea Müller,  63

Arné, Serge,  71, 72

Badinter, Robert,  75

Baudrez, Maryse,  75

Beaud, Olivier,  75

Bridel, Marcel,  74

Cappelletti, Mauro,  10

Chestnut, Renate,  58, 83, 84

Cole, Taylor,  35, 37, 87 37

Conrad, Dietrich,  93

Costello, Cathryn,  72

Curie, David P.,  86, 87

da Silva, Virgilio Afonso,  67

Dellinger, Walter,  29

Dietze, Gottfried,  85, 86

Dorsen, Norman,  14, 69

Doyle, Jonathan J.,  59

Escarras, Jean-Claude,  75

Fassbinder, Bardo,  62

Favoreu, Louis,  10

Foster, Nigel,  56

Fromont, Michel,  60

Geller (Justice) (Germany),  59

Gözler, Kemal,  52, 69, 71, 74

Grover (Justice) (India),  94

Hegde (Justice) (India),  94

Henkin, Louis,  10

Iancu, Gheorge,  6

Ionescu, Monica,  6

Jacobsohn, Gary Jeffrey,  67, 81, 86, 92

Jaklič, Klemen,  85, 86

Jambrek, Peter,  85, 86

Jouanjan, Olivier,  60

Kauper, Paul G.,  88

Kommers, Donald D.,  85, 86, 87

Ku, Raymond,  80

Leibholz, Gerhard,  85

Levinson, Sanford,  68, 80

Lumpp, Katharina,  62

Marbury, William L.,  68, 79

Marx, Reinhard,  62

Mazzone, Jason,  80,86

McGovney, D. O.,  79

Minattur, Joseph,  91

Moor, Pierre,  74

Morgan, David Gwynn,  88, 91, 92

Morscher, Siegbert,  37, 38

Mukherjea (Justice) (India),  94

Murphy, Walter F.,  56, 68, 69, 72, 74, 80

Nohlen, Nicolas,  64

Noorani, A. G.,  93

O’Connell, Rory,  9, 81, 86, 88, 90, 92, 94

O’Hanlon, Roderick,  72, 81

Orfield, Lester B.,  79

Peyrou-Pistouley, Sylvie,  35, 36

Pfersmann, Otto,  36, 38

Popa, Nicalae,  6

Powell, Thomas Reed,  79

Rao, K. Subba,  88

Rao, Subba,  91

Reddy, Jaganmohan (Justice) (India),  94

Rials, Stéphane,  71, 72

Rigaux, Marie-Françoise,  52, 68

Riordan, Denis,  18

Rosen, Jeff,  73, 80

Rosenthal, Albert J.,  10

Rupp (Justice, Germany),  59

Sathe, S. P.,  92, 95

Scheppele, Kim Lane,  64

Sethi, Anuranjan,  9, 88, 92, 94, 95

Shelat (Justice) (India),  94

Sikri (Chief Justice) (India),  94

Skinner, George D.,  67

Somek, Alexander,  34

Steinhorst, Ulrike,  37

Stender-Vorwachs, Jutta,  63, 64

Stewart, Charles E.,  59, 61

Sule, Satish,  56

Suliman, Doina,  6

Tanenhaus, Joseph,  56

Tribe, Laurence H.,  80

Turpin, Dominique,  75

Vile, John R.,  80

von Schlabrendorff (Justice, Germany),  59

 

IV. Index of Subjects

amend (interpretation of the word-), 68

amending power, 66

amendment, 70

American model of judicial review, 10

Änderung, 71

asylum, 63

Austrian Constitutional Court, 23-24, 34-40

basic constitutional principles in a system-immanent manner, 58

basic structure doctrine, 9, 88, 92

basic structure of the Constitution, 9, 93

Bavarian Constitutional Court, 85

Bundesrecht, 23

bunreacht, 19

Chilean Constitutional Court, 5

complete revision, 69

constituent power, 76

constitutional amendments, 20

constitutional laws (lois constitutionnelles), 15

constitutional laws (Verfassungsgesetz), 23, 34

constitutional provisions (Verfassungsbestimmung), 23, 34

core of the property right, 44

değişiklik, 71

doctrine of basic structure, 93

emendere, 68

equal suffrage of states in the Senate, 79

essential features, 88

European Court of Human Rights, 58

European model of judicial review, 12, 21

exceptio est strictissimae interpretationis, 22, 47, 97.

explicit substantive limits, 67, 77, 83

express substantive limitation, 78

Expressio unius est exclusio alterius, 13

expropriation on the basis of the fiscal value, 44

expropriations were undertaken from 1945 to 1949 (Germany), 60

federal law (Bundesgesetzes), 23

federal legislation (Bundesrecht), 23

federal or land law (eines Bundes-oder Landesgesetzes), 23

federal or land legislation, 22

formal regularity of constitutional amendments, 27, 45, 46, 48

French Constitutional Council, 14-16

fundamental postulates of justice, 87

fundamental principle, 39

general jurisdiction, 12, 21

German Constitutional Court, 22-23, 55-64, 83-84

German reunification, 59

German Reunification Treaty of August 31, 1990, 59

hierarchy between constitutional norms, 74-78

hierarchy of constitutional norms, 74

hierarchy, 74

higher-law (‘übergesetzliche’) principle of justice (‘die äußersten Grenzen der Gerechtigkeit’), 87

higher-law principle of justice, 86

human dignity, 59

Hungarian Constitutional Court, 16

identity of the constitution, 69

immutability of the republican form of the State, 95

immutable principles enumerated in Article 79(3) of the Basic Law (Germany), 61

immutable principles, 61

immutable provisions, 77

implicit substantive limits, 67, 68, 79

implied substantive limits, 67

Indian Supreme Court, 8, 88-95

individual legal protection, 59

inner unity of the constitution, 69

intangibility of republican form of state, 65

intrinsic limitations on the power of constitutional amendment, 67

intrinsic substantive limits, 67

Irish Supreme Court, 17-20, 8181-83

judicial review of the substance of constitutional amendments, 52-95

laws (lois), 15

laws of constitutional amendments, 21, 25

laws, 20

leading principles (leitender Grundsatz), 36, 39

legitimacy of constitutional change, 80

Lex specialis derogat legi generali, 77

Lex posterior derogat legi priori, 77

limitations upon the amending power, 68

limited and special jurisdiction, 12, 22

natural justice, 87

natural law theory, 73

natural law, 72

norms of objective ethics, 87

Oireachtas, 19

ordinary laws, 21

partial revision, 34

political questions, 34

privacy of communications, 57

privacy of correspondence, 56

procedural irregularity, 65

procedural regularity of the constitutional amendment, 27

procedure, 36

prospective overruling, 90

qualified majority, 27

referendum, 38

reforma, 71

republican form of government, 52

republican form of state, 44, 45, 46, 66

requirements of contemporary civilization, 97

review in respect of form, 48

review of the formal regularity of constitutional amendments, 27-47

review of the substance of constitutional amendments, 51-95

revisão, 70

revision, 70

revisione, 70

Romanian Constitutional Court, 6

scope of the review, 25

secure State of origin, 63

separation of power, 59

Slovenian Constitutional Court, 17

spirit of the constitution, 69

substance of constitutional amendments, 51

substance of the existing constitutional order, 58

substance, 35

substantial limitation on the amending power, 65

substantive limits imposed by the 1949 German Basic Law on constitutional amendments, 55

substantive limits inferred from a doctrinal interpretation, 68

substantive limits on constitutional amendments, 51

substantive limits on the amending power, 66, 95

substantive limits, 52, 53, 55, 66

super positive, 87

superiority of natural law over the constitution, 72

supra-constitutional norms, 71

supra-constitutional principles, 71

supra-constitutionality, 71, 73

supra-positive basic norms, 87

surveillance measures, 57

taxi licenses, 37

total revision (Gesamtänderung), 34, 36

total revision, 34, 36, 37, 39, 69

Turkish Constitutional Court, 24-26, 40-48

unconstitutional constitutional norms (Verfassungswridge Verfassungsnormen), 86

unconstitutional constitutional norms, 91, 81

unification amendment, 60

United States Supreme Court, 28-34, 78-81

 

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Kemal Gözler, Judicial Review of Constitutional Amendments: A Comparative Study, Bursa, Ekin Press, 2008, XII+126 p.

[http://www.anayasa.gen.tr/jrca-3.htm] (Dec. 20, 2008)

 

For PDF version, click here.

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