WEB SITE OF TURKISH CONSTITUTIONAL LAW

Kemal Gözler, Judicial Review of Constitutional Amendments:A Comparative Study, Bursa, Ekin Press, 2008, XII+126 p.[http://www.anayasa.gen.tr/jrca-2] (Dec. 20, 2008)

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Kemal Gözler

Uludağ University, Turkey

Judicial Review of Constitutional Amendments

A Comparative Study

Ekin Press

Bursa - 2008

Kemal Gözler

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]

(For Chapter 1, click here)

Chapter 2 Can Constitutional Courts Review the Formal and Procedural
Regularity of Constitutional Amendments?

The review of the constitutionality of constitutional amendments with respect to their form and procedure, or in other word, the review of the formal regularity of constitutional amendments, consists in the verification of whether the conditions provided for in the constitution for their proposal, debate, adoption, ratification, and promulgation are fulfilled. In order to amend the constitution, many constitutions require a “qualified majority”, such as two-thirds or three-fifths, of the total member of the parliament or of total number of votes cast. Other constitutions provide the ratification of constitutional amendments by means of a referendum. The verification of whether a constitutional amendment is enacted in conformity with those rules of procedure constitutes a “review of formal and procedural regularity” of the constitutional amendment. For example if a constitutional amendment is adopted by parliament with a majority of three-fifths of its total members, when a majority of two-thirds of the total members is required by the constitution, this constitutional amendment would be contrary to the constitution with respect to form. The issue then becomes whether constitutional courts can review and invalidate such a constitutional amendment.

This question can be answered affirmatively. After having declared itself competent to rule on a constitutional amendment, a constitutional court can examine its formal and procedural regularity. A constitutional amendment is valid only if it was enacted in conformity with the conditions of form and procedure provided for in the constitution. For example, when the constitution requires a majority of two-thirds of the total members of parliament, if a constitutional amendment is adopted by an absolute majority of the parliament, the constitutional amendment is not valid. Likewise, when the constitution prescribes a referendum for its ratification, if a constitutional amendment is put into effect without a referendum, such a constitutional amendment would not be valid. Consequently, the constitutional court can examine the conformity of a constitutional amendment with the conditions of form and procedure and if the court founds that this amendment is contrary to these conditions, then it can declare the amendment invalid. In this manner, the United States Supreme Court, the Austrian Federal Constitutional Court, and the Turkish Constitutional court have reviewed the formal and procedural regularity constitutionality of constitutional amendments.

I. The United States Supreme Court

The following cases are examples of where the United States Supreme Court reviewed the formal and procedural regularity of constitutional amendments.

1. Hollingsworth v. Virginia[1]

As noted by Walter Dellinger,[2] in the United States, the judicial review of constitutional amendments is older than the judicial review of laws. The first decision of the Supreme Court relating to the constitutionality of constitutional amendments came in 1798 in Hollingsworth v. VirginiaXE "Hollingsworth v. Virginia", five years before the Marbury v. Madison (1803) establishing the judicial review of laws. In Hollingsworth v. Virginia, it was argued that the Eleventh Amendment had not been adopted in conformity with the Constitution because it “was never submitted to the President for his approbation”,[3] as was allegedly required by Article I, § 7, cl. 3 of the Constitution. The Supreme Court rejected this argument saying that “the negative of the President applies only to the ordinary cases of legislation: He has nothing to do with the proposition, or adoption, of amendments to the Constitution.”[4] In this case, the Supreme Court declared that the Eleventh Amendment had been “constitutionally adopted.”[5]

2. National Prohibition Cases (State of Rhode Island v. Palmer, and Seven Other Cases)[6]

In these cases, it is claimed, inter alia, that the Eighteenth Amendment had been adopted by the two-third of the members present, and not of the total members of both Houses, as was arguably required by Article V[7] of the Constitution. The Supreme Court rejected this claim and held that “the two-thirds vote in each house which is required in proposing an amendment is a vote of two-thirds of the members present –assuming the presence of a quorum– and not a vote of two-thirds of the entire membership, present and absent.”[8]

3. Dillon v. Gloss[9]

This case is also related to the Eighteenth Amendment prohibiting the manufacture, sale, and transportation of intoxicating liquors in the United States. J. J. Dillon was arrested on January 17, 1920, and charged with transporting intoxicating liquor in violation of the National Prohibition Act. Dillon filed a petition for a writ of habeas corpus, but his petition was denied by an order.[10] Dillon appealed against this order before the Supreme Court. The appellant invoked two grounds. First, Dillon argued that the seven years time-limitation for the ratification, provided under Section 3[11] of the Amendment, was not reasonable. The Supreme Court rejected this argument and held that Congress has the power to fix a time limit for the ratification of an amendment and that the seven year period was reasonable.[12] Secondly, Dillon claimed that the amendment had not come into effect on the day of his arrest, January 17, 1920.[13] The last necessary state ratified the amendment on January 16, 1919, and the Secretary of State certified the ratification on January 29, 1919.[14] Because Article 1 of the Amendment provides that the Amendment goes into effect after one year from its ratification, on January 29, 1920, the appellant argued that there was not a legal ground for his arrest on January 17, 1920. The Supreme Court rejected Dillon’s claim, for the reason that the Secretary of State’s proclamation is not material for being in effect, and that the amendment process is consumed by the last state ratification, thus the amendment went into effect on January 16, 1920, one year after the ratification of the last state.[15]

4. United States v. Sprague[16]

This case is also related to the Eighteenth Amendment. The Eighteenth Amendment had been ratified by legislatures of states, and not by the conventions. The appellants contended that this Amendment could only be ratified by the conventions. They argued that it was in the intent of the framers of the Constitution that the “amendments conferring on the United States new direct powers over individuals shall be ratified in conventions; and that the Eighteenth is of this character.”[17] The Supreme Court rejected this claim and held that the choice of the mode of ratification is dependent on the sole discretion of Congress.[18]

5. Coleman v. Miller[19]

In June 1924, Congress proposed an amendment to the Constitution known as the Child Labor Amendment.[20] In January 1925, the Legislature of Kansas adopted a resolution rejecting the proposed amendment and a certified copy of the resolution was sent to the Secretary of State of the United States.[21] After twelve years, in January, 1937, the Legislature of Kansas ratified the same proposed amendment. Twenty-one members of the Senate and three members of the House of Representatives of Kansas attacked the validity of the ratification by bringing an original proceeding for a writ of mandamus in the Supreme Court of Kansas. They sought to restrain the Secretary of State of Kansas from authenticating the resolution ratifying the proposed amendment.[22] The Supreme Court of Kansas denied the writ of mandamus and upheld the validity of the Kansas legislature’s ratification.[23]

The case was appealed to the Supreme Court. The plaintiffs urged two principal grounds of invalidity: (1) The Kansas legislature could not later ratify a proposed amendment which it initially rejected. (2) The amendment, which had been proposed in 1924, had lost its vitality due to the lapse of time, and hence, it could not be ratified by the Kansas legislature in 1937.[24] The Supreme Court rejected those arguments. The Supreme Court held that the questions relating to the effect of the previous rejection of the amendment and of the lapse of time since its submission to the ratification were “questions deemed to be political and not justiciable.”[25] Concerning these questions, the Supreme Court has concluded that “the Congress in controlling the promulgation of the adoption of a constitutional amendment has the final determination.”[26]

In summary, the United States Supreme Court, in Hollings-worth v. Virginia,[27] National Prohibition Cases,[28] Dillon v. Gloss[29] and United States v. Sprague (1931),[30] has reviewed the regularity of the procedure by which the constitutional amendments have been adopted. But the Supreme Court, in Coleman v. Miller,[31] refused to review the procedural regularity of the Child Labor Amendment for that reason its proposition and ratification were deemed to be “political questions.”[32]

II. Austrian Constitutional Court

First, it should be pointed out that under the Austrian Constitution of 1920 (revised in 1929, reinstated in 1945), there are no substantive limits for constitutional amendments. In other words, all of the provisions of the Constitution can be amended. The Austrian Constitution, however, provides the conditions of form and procedure for the constitutional amendments. Article 44 of the Constitution distinguishes between the partial revision and the total revision of the Constitution and submits them to the different procedures. Under Article 44(1) of the Constitution, the amendments that fall under partial revisions, which are called “constitutional laws” (Verfassungsgesetz) or “constitutional provisions” (Verfassungsbestimmung), can be enacted by the Parliament.[33] But, section 3 of the same Article requires that those providing for a “total revision” (Gesamtänderung)[34] of the Constitution be submitted to a referendum.[35]

1. Decision of December 12, 1952 (Länder Citizenship)[36]

In this case, it was argued that the Constitutional Law on Länder Citizenship is contrary to the Constitution, because it was adopted by Parliament and not by way of a referendum, as arguably required by Article 44(3) of the Constitution, since it is a “total revision.”[37] In this case, the Austrian Constitutional Court had, for the first time in history, the occasion to rule on the question of whether it was competent to rule on the constitutionality of constitutional amendments. The Austrian Court answered this question in the following way. First, the Constitutional Court declared itself incompetent to review the constitutionality of constitutional laws with respect to their substance, “since, in general, any standard for such an examination is missing.”[38] However the Austrian Constitutional Court declared itself competent to review the constitutionality of constitutional laws with respect to their procedure because according to the Court, the constitutional laws must be enacted in conformity with the procedure proscribed by Article 44 of the Constitution.[39] The third paragraph of this Article stipulates that “any total revision of the Federal Constitution shall…be submitted to a referendum by the entire nation”; therefore, according to the Constitutional Court, it is necessary to determine whether the impugned constitutional law involves a “total revision.” If this constitutional law were deemed to be a “total revision”, it would be contrary to Article 44(3) of the Constitution because it was not adopted by referendum, and for this reason, it is necessary for the Federal Constitutional Court to define what is a “total revision” (Gesamtänderung). At first glance, it appears that a “total revision” is the modification of all articles of the Constitution, but the Austrian Constitutional Court has defined “total revision” to mean a constitutional amendment which can affect one of the “leading principles” (leitender Grundsatz) of the Federal Constitution.[40] And in this decision, the Constitutional Court considered that the democratic principle, the principle of the rule of law and the federal principle as the “leading principles.” Consequently, if a constitutional amendment affecting one of those fundamental principles is adopted without referendum, it would be contrary to Article 44(3) of the Constitution. In the instant case, however, the Constitutional Court ruled that the Constitutional Law on Länder Citizenship, which was adopted by the parliament, is not contrary to Article 44(3) of the Constitution because it does not affect one of the leading principles; hence, since it does not involve a “total revision”, it does not need to be submitted to a referendum.[41]

It is important to underline that the democratic principle, the principle of the rule of law, and the federal principle, are considered to be “leading principles” by the Austrian Constitutional Court, are not “immutable principles.” But the constitutional amendments affecting one of these principles must be submitted to the referendum of entire federal population.

2. Decision of June 23, 1988[42]

The Austrian Constitutional Court, in this decision, ruled that a constitutional law concerning taxi licenses[43] involved a “total revision” of the Constitution, and therefore, it should be approved by referendum, but, in the instant case, it was adopted by parliamentary way. Consequently, the Constitutional Court declared that this constitutional law is contrary to Article 44(3) of the Constitution and annulled it.[44]

3. Decision of September 29, 1988[45]

In 1986, a constitutional law obliged the owners of motor vehicle to provide the name of the person who driving their vehicle in case the driver was involved in a traffic offence where the offender could not identified on the spur of the moment.[46] The Austrian Constitutional Court did not annul this constitutional law, but maintained its jurisprudence by stating that all constitutional laws adopted by way of the parliament must conform to the fundamental principles of the Federal Constitution.[47] Otherwise, they must be approved by a referendum as required under Article 44(3) of the Constitution.

4. Decision of March 10, 2001[48]

A provision of a constitutional law[49] provided that the statutes of the Länder, on the organization and jurisdiction of organs which are established in order to review the awards of public contracts, should not be deemed to be unconstitutional. The Austrian Constitutional Court stated that this provision made “all legislation of the Länder on the organization and jurisdiction of institutions in the field of public procurement review exempt from the Federal Constitution. Thus the Constitution should be deprived of its normative power for this part of the legal order.”[50] According to the Court, “the loss of the Constitution’s normative power…violates the rule of law” being a “fundamental principle” of the Constitution. Therefore, a constitutional amendment affecting this principle involves a total revision necessitating the adoption by referendum under Article 44(3) of the Constitution. But the impugned constitutional provision is adopted by the parliament and not by referendum, thus it is unconstitutional. For that reason, the Constitutional Court annulled the provision of the constitutional law.[51]

Criticism.- Even though, the Austrian Constitutional Court acknowledged that it does not have jurisdiction to examine the substance of constitutional amendments because “any standard for such an examination is missing”, as explained above, due to its definition of “total revision”, the Constitutional Court has, in fact, reviewed the substance of the constitutional amendments adopted by way of the Parliament. The Austrian Constitutional Court’s definition of “total revision” is apparently controversial. For the layperson “total revision of the Constitution” means the modification of all articles of the Constitution, but for the Austrian Constitutional Court, as explained above, “total revision” means a constitutional amendment which can affect one of the “leading principles” of the Constitution. This definition seems to be baseless because the Constitution does not define the total revision as such. On the other hand, “leading principles” by which the Constitutional Court defined the concept of “total revision”, cannot be objectively determinable because there is no provision in the Austrian Constitution determining these principles.

III. Turkish Constitutional Court

It is necessary to divide the case-law of Turkish Constitutional Court into three periods because the constitutional regulation concerning the judicial review of constitutional amendments in each period differs from other.

A. Under the 1961 Turkish Constitution, before the 1971 Amendment

In the 1961 Turkish Constitution, before the 1971 Amendment, there was no special provision on the question of the constitutionality of constitutional amendments. During this period, however, the Turkish Constitutional Court declared itself competent to review the constitutionality of constitutional amendments and reviewed the formal regularity of constitutional amendments in the following decisions:

1. Decision of June 16, 1970, No. 1970/31[52]

Article 68 of the 1961 Turkish Constitution provided that persons convicted of certain crimes shall not be elected deputies, even if they have been amnestied. The second part of the clause (“even if they have been amnestied”) was repealed by the Constitutional Amendment of November 6, 1969.[53] This constitutional amendment was challenged by the Worker Party before the Constitutional Court. It is argued that this constitutional amendment was unconstitutional with respect to both its form and substance. The Constitutional Court declared itself competent to review the constitutionality of constitutional amendments with respect to both form and substance.[54] In instant case, the Constitutional Court, in an eight-to-seven vote, ruled that this constitutional amendment was not enacted in conformity with the procedure of amendment laid down by Article 155 of the 1961 Constitution which provides that the adoption of a proposal for constitutional amendment shall require a two-third majority of the total number of members of each assembly. In the deliberation of the Constitutional Amendment of November 6, 1969, the National Assembly first voted separately on the amendment’s articles with a simple majority, and then it voted the entire amendment with a two-third majority of the total number of its members. But the Constitutional Court held, with a vote of eight-to-seven, that not only did the entire text of the amendment have to be adopted with a two-third vote, but each article, as well. Consequently the Turkish Constitutional Court invalidated the constitutional amendment of November 6, 1969. [55]

2. Decision of April 3, 1971, No. 1971/37[56]

The Turkish Constitutional Court, in this decision, examined the formal and procedural regularity of the constitutional amendment of April 17, 1970.[57] The Court did not find a formal or procedural irregularity.[58] In this decision, the Court also reviewed the substance of this amendment. This aspect of the decision will be analyzed later.[59]

B. Under the 1961 Turkish Constitution (as Amended in 1971)

Article 147 of the 1961 Turkish Constitution, as amended in 1971, stipulated that the Turkish Constitutional Court can review the formal regularity of constitutional amendments.[60] As a result, from 1971 to 1980, the Constitutional Court could only review the constitutionality of constitutional amendments with respect to their form, but not their substance. This notwithstanding, as is explained below, the Turkish Constitutional Court held that the prohibition to amend the republican form of state is a condition of form, and not a condition of substance. During this period, the Turkish Constitutional Court rendered five decisions reviewing the constitutionality of constitutional amendments. These decisions are discussed below.

1. Decision of April 15, 1975, No. 1975/87[61]

The constitutional amendment of March 15, 1973 added a last paragraph to Article 138 of the 1961 Constitution. This paragraph provides that “the majority of the members of the military courts shall have the quality of judges. This condition is not required in time of war.” The second sentence was annulled on April 15, 1975, by the Constitutional Court, for the reason that it is contrary to the prohibition of amending the republican form of state. The Constitutional Court’s reasoning can be described as follows: The fact that the majority of the members of a military court, in time of war, can be non-judges (Article 138 in fine) violates the principle that courts must be independent (Article 7), this is a component of the rule of law principle (Article 2), and the latter principle is an integral part of the republican form of state (Article 1) which, pursuant to Article 9 of the 1961 Constitution, cannot be amended.[62]

3. Decisions of March 23, 1976, No. 1976/19[63] and October 12, 1976, No. 1976/46[64]

Article 38 of the 1961 Constitution was amended on September 20, 1971. The new version of Article 38 provides that the compensation for the expropriation of real estate cannot exceed the value its owner previously declared to the tax administration.[65] It is argued that the new version of Article 38 of the 1961 Constitution violates the prohibition to amend the republican form of state. The Turkish Constitutional Court, in its decision of March 23, 1976, rejected this argument and ruled, in an eight-to-seven vote, that the amended version of Article 38 is not contrary to the prohibition to amend the republican form of state.[66] But, six months later, the Constitutional Court, in its decision of October 12, 1976, reversed the holding in an eight-to-seven vote. In its judgment, the Court invalidated the amended version of Article 38 for the reason that the calculation of the compensation for expropriation on the basis of the fiscal value affects the “core” of the property right, protected by Article 36. Consequently pursuant to Article 9, the rule of law principle as provided in Article 2 and which is a component of the republican form of state (Article 1), cannot be changed by a constitutional amendment.[67]

3. Decision of January 28, 1977, No. 1977/4[68]

The constitutional amendment of September 20, 1971, modifying Article 144 of the 1961 Constitution, precluded the judicial review of the decisions made by the Supreme Council of Judges.[69] It is claimed, by way of the concrete judicial review, that the amended version of Article 144 is contrary to Constitution. The Turkish Constitutional Court acknowledged this and ruled that the new version of Article 144, providing that “there shall be no appeal to any judicial instance against decisions of the Supreme Council of Judges” was contrary to the prohibition to amend the republican form of state. According to the Constitutional Court, the preclusion of judicial review affects the rule of law principle as protected by Article 2 and which is a characteristic of the Turkish Republic; therefore, this preclusion falls under the prohibition to amend the republican form of state, as provided by Article 9.

4. Decision of September 27, 1977, No. 1977/117[70]

The constitutional amendment of September 20, 1971, modifying Article 137 of the 1961 Constitution, precluded the judicial review of the decisions of the Supreme Council of Prosecutors.[71] It is claimed, by way of concrete review of constitutionality, the revised version of Article 144 is contrary to the Constitution. In this case, which is similar to the previous case, the Turkish Constitutional Court ruled that the preclusion of judicial review of the decisions made by the Supreme Council of Prosecutors is contrary to the prohibition to amend the republican form of state for the above-mentioned reasons relating to the decision of January 28, 1977.

In the decisions discussed above, the Turkish Constitutional Court first declared itself incompetent to rule on the substance of constitutional amendments. The Court affirmed that it could only rule on the formal regularity of constitutional amendments. That is correct because Article 147 of the Turkish Constitution of 1961 as amended in 1971 explicitly empowered the Constitutional Court to review only the formal regularity of constitutional amendments;[72] however, it should be noted that the Court defined the concept of “formal regularity” broadly. According to the Court, “formal regularity” encompasses not only the conditions relating to the proposition, deliberation, and ratification of a constitutional amendment, but also the prohibition of modifying the republican form of state. In other words, in view of the Constitutional Court, it can review the conformity of the constitutional amendments not only with Article 155 which determines the conditions of form and procedure of constitutional amendments, but also with Article 9 which further provides that the republican form of state cannot be amended, nor can its amendment be proposed. In addition, in those decisions, the Constitutional Court broadly interpreted the concept of “republican form of state.” According to the Turkish Constitutional Court, it is prohibited to amend, not only the “republican form of state” itself as provided by Article 1, but also its characteristics, as defined by Article 2 of the Constitution, i.e. rule of law, democracy, social state, secularism, etc. In other words, according to the Constitutional Court, not only the republican form of state, but also its characteristics are intangibles.

Criticism.- The above-mentioned Turkish Constitutional Court’s decisions can be subjected to severe criticism. First, the definition of the formal regularity of constitutional amendments, as defined by the Constitutional Court, is ill-founded. The question of whether a constitutional amendment affects the immutability of the republican form of state is not a question of form or procedure, but a question of substance because, without looking at the text of the constitutional amendment, it is impossible to determine if it violates this immutability. Secondly, the broad interpretation of the concept of “republican form” is also ill-founded because, according to Article 9, only the clause providing that “the form of Turkish State is republic” is an immutable clause, and this clause is only found in Article 1. If the framers of the 1961 Constitution wanted to protect not only the republican form of the Turkish State, but also its characteristics, which are provided in Article 2, they could have prohibited the amendment of these characteristics. Additionally, the immutability of some constitutional provisions carves out an exception to the general rule providing that all of provisions of the Constitution can be amended. As an exception, according to the maxim exceptio est strictissimae interpretationis,[73] it should be narrowly interpreted.

Notwithstanding the fact that this article criticizes these decisions which were rendered by the Turkish Constitutional Court, they are valid because, under Article 152 of the 1961 Turkish Constitution, the decisions of the Constitutional Court are final and binding on the legislative, executive, and judicial organs. Albeit utterly ill-founded, these decisions have had legal consequences. For example, the provisions of the constitutional amendments which have been annulled by these decisions have lost their validity. Consequently, it can conclude that between 1971 and 1980, in Turkey, the review of the constitutionality of constitutional amendments with respect to their form and substance[74] was possible.

C. Under the 1982 Turkish Constitution

The Turkish Constitution of 1982 specifically regulates the judicial review of constitutional amendments. Article 148(1) of the Constitution explicitly empowers the Constitutional Court to review the constitutionality of constitutional amendments; however, it limits this review to form. In other words, constitutional amendments can be examined and reviewed only with regard to their form, and thus the Constitutional Court cannot review the substance of constitutional amendments. In addition to this and taking the lessons learned from the Constitutional Court’s misinterpretation of the concept “formal regularity” during the 1970’s, the framers of the 1982 Constitution, in Article 148(2), defined the scope of the term “review in respect of form.” According to this Article, the review of the formal regularity of constitutional amendments “shall be restricted to consideration of whether the requisite majorities were obtained for the proposal and in the ballot, and whether the prohibition on debates under urgent procedure was complied with.”[75] Consequently, under the 1982 Constitution, unlike the 1961 Constitution, the Turkish Constitutional Court cannot review the substance of constitutional amendments by broadly interpreting the concept of “formal regularity.”

Until now (December 2006), the Turkish Constitutional Court has only had one occasion to rule on the constitutionality of constitutional amendments under the 1982 Constitution. In that case, concerning the Law on Constitutional Amendment of May 17, 1987 one-fifth of the members of the Turkish Parliament submitted an application for annulment action to the Constitutional Court, on the ground that the enactment of the Law on Constitutional Amendment was in conflict with the provisions of the Constitution. The Constitutional Court, in its decision dated June 8, 1987, No. 1987/15,[76] ruled that it did hot have the jurisdiction to accept an application for annulment action based on any grounds other than those mentioned in Article 148(1) of Constitution, (i.e., whether the requisite majorities were obtained for the proposal and in the ballot, and whether the prohibition on debates under urgent procedure was complied with); therefore, the Constitutional Court declared that the application was inadmissible for the reason that the pleas in law on which the application was based, was not one of the procedural irregularities restrictively enumerated in Article 148(1).

For Chapter 3, Conclusion, Bibliography and Index, click here.

[1] 3 U.S. (3 Dallas) 378 (1798).

[2] Walter Dellinger, The Legitimacy of Constitutional Change: Rethinking the Amendment Process, Harv. L. Rev. 386, 403 (1983).

[3] 3 U.S. (3 Dallas) 378, at 379 (1798).

[4] Id. at 382.

[5] Id.

[6] 253 U.S. 350 (1920).

[7] Article V stipulates as follows: “The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution …” (U.S. Const. art V).

[8] 253 U.S. 350, at 386 (1920).

[9] 256 U.S. 368 (1921).

[10] Ex parte Dillon (D. C.) 262 Fed. 563, quoted in 256 U.S. 368, at 370 (1921).

[11] Sec. 3 of the Eighteenth Amendment provides as follows: “This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress” (U.S. Const. amend. XVII, § 3).

[12] “Whether a definite period for ratification shall be fixed, so that all may know what it is and speculation on what is a reasonable time may be avoided, is, in our opinion, a matter of detail which Congress may determine as an incident of its power to designate the mode of ratification. It is not questioned that seven years, the period fixed in this instance, was reasonable, if power existed to fix a definite time; nor could it well be questioned considering the periods within which prior amendments were ratified” (256 U.S. 368, at 376 (1921)).

[13] 256 U.S. 368, at 371 (1921).

[14] Id. at 376.

[15] Id. at 377.

[16] 282 U.S. 716 (1931).

[17] Id. at 719.

[18] Id. at 730.

[19] 307 U.S. 433 (1939).

[20] Child Labor Amendment provided that “Congress shall have power to limit, regulate and prohibit the labor of persons under eighteen years of age” (H.R.J. Res. 184, 68^th Cong., 1^st Sess., 43 Stat. 670 (1924), quoted in Dellin-ger, supra note 2 at 389).

[21] 307 U.S. 433, at 435 (1939).

[22] Id. at 436.

[23] Id. at 437.

[24] Id. at 451.

[25] Id. at 454.

[26] Id. at 456.

[27] 3 U.S. 378 (Dall.) (1798).

[28] 253 U.S. 350 (1920).

[29] 256 U.S. 368 (1921).

[30] 282 U.S. 716 (1931).

[31] 307 U.S. 433 (1939).

[32] Id. at 454.

[33] Article 44(1) of the Austrian Constitution provides as follows: “Constitutional laws or constitutional provisions contained in simple laws can be passed by the National Council only in the presence of at least half the members and by a two thirds majority of the votes cast; they shall be explicitly specified as such (‘constitutional law’, ‘constitutional provision’)” (Bundes-Verfassungsgesetz [B-VG] [Constitution] art.44, ¶ 1 (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).

[34] See generally Alexander Somek, Constitutional Theory as a Problem of Constitutional Law: On the Constitutional Court’s Total Revision of Austrian Constitutional Law, Vienna Working Papers in Legal Theory, Political Philosophy, and Applied Ethics, No. 7, Vienna 1998, available at http://www.juridicum.at/component/option,com_docman/task,doc_ download/ gid,21/Itemid,91/ (last visited July 26, 2006).

[35] Article 44(3) of the Austrian Constitution stipulates as follows: “Any total revision of the Federal Constitution shall upon conclusion of the procedure pursuant to Art. 42 above but before its authentication by the Federal President be submitted to a referendum by the entire nation” (Bundes-Verfassungsgesetz [B-VG] [Constitution] art.44, ¶ 3 (Austria). See supra note 33).

[36] Sammlung der Erkenntnisse und Beschlüsse des Verfassungsgerichtshofes [hereinafter VfSlg], [Reports of the Decisions of the Federal Constitutional Court], No. 2455, quoted in Taylor Cole, Three Constitutional Courts: A Comparison, 3 Am. Pol. Sci. Rev. 963, 974 (1959).

[37] Sylvie Peyrou-Pistouley, La Cour constitutionnelle et le contrôle de la constitutionnalité des lois en Autriche [The Constitutional Court and the Control of the Constitutionality of Laws in Austria] 176 (Economica 1993).

[38] VfSlg, No.2455, quoted in Cole, supra note 36, at 974.

[39] VfSlg, No. 2455, quoted in Peyrou-Pistouley, supra note 37, at 176.

[40] VfSlg, No. 2455, quoted in Otto Pfersmann, La révision constitutionnelle en Autriche et en Allemagne fédérale: théorie, pratique, limites [Constitutional amendment in Austria and Federal Germany: Theory, Practice, Limits], La révision de la constitution [Amendment of the Constitution] 7, 40 (Economica & Presses universitaires d'Aix‑Marseille 1993).

[41] VfSlg, N.2455, quoted in Cole, supra note 36, at 974.

[42] VfSlg, 29, V 102/88, quoted in Siegbert Morscher, La hiérarchie des normes constitutionnelles et sa fonction dans la protection des droits fondamentaux [The Hierarchy of Constitutional Norms and its Function in the Protection of fundamental Rights], (Ulrike Steinhorst trans.), 6 Annuaire international de justice constitutionnelle 25, 34 (1990).

[43] Bundesgesetzblatt [Official Gazette of Federal Laws], 1987/281, quoted in Pfersmann, supra note 40, at 38.

[44] VfSlg, 29, V 102/88, quoted in Morscher, supra note 42, at 34.

[45] VfSlg, 11.829, quoted in Pfersmann, supra note 40, at 39; G 72, 102-104, 122-125, 136, 151-160/88, quoted in Morscher, supra note 42, at 35.

[46] Bundesgesetzblatt [Official Gazette of Federal Laws], 1986/106, quoted in Pfersmann, supra note 40, at 39.

[47] VfSlg, 11.829, quoted in Morscher, supra note 42, at 35.

[48] G 12/00, G 48-51/00. An English précis of this decision is available in CODICES database of Venice Commission, at http://codices.coe.int (AUT-2001-1-003) (last visited Mar. 21, 2007).

[49] Paragraph 126a of the Federal Procurement Law (Bundesvergabegesetz), quoted in the decision of March 10, 2001 of the Austrian Constitutional Court, available in CODICES database of Venice Commission, at http:// codices.coe.int (AUT-2001-1-003) (last visited April 5, 2007).

[50] Decision of March 10, 2001, G 12/00, G 48-51/00. See supra note 48.

[51] Id.

[52] 8 AMKD 313 (1970).

[53] Resmi Gazete [Official Gazette], Nov. 12, 1969, No. 13349.

[54] 8 AMKD 313, at 322-323.

[55] Id. at 325-332.

[56] 9 AMKD 416 (1970).

[57] Resmi Gazete [Official Gazette], Apr. 22, 1970, No. 13578.

[58] 9 AMKD 416, at 426.

[59] See infra pp. 95-97.

[60] Anayasa [Constitution] art. 147(1) (1961, amended 1971) (Turkey). For an the English translation of the 1961 Turkish Constitution, as amended in 1971, see The Turkish Constitution As Amended (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).

[61] 13 AMKD 403 (1975).

[62] Id. at 447-448.

[63] 14 AMKD 118 (1976).

[64] Id. at 252-285.

[65] Anayasa [Constitution] art. 38(2) (1961, amended 1971) (Turkey). See supra note 60.

[66] 14 AMKD 118, at 134-136 (1976).

[67] Id. at 274-276.

[68] 15 AMKD 106-131 (1977).

[69] Anayasa [Constitution] art. 144 (1961, amended 1971) (Turkey). See supra note 60.

[70] 15 AMKD 444 (1977).

[71] Anayasa [Constitution] art. 137 (1961, amended 1971) (Turkey). See supra note 60.

[72] Anayasa [Constitution] art. 147 (1961, amended 1971) (Turkey). See supra note 60.

[73] Exceptions must be interpreted in the strictest manner.

[74] This is based on the Constitutional Court’s interpretation of “formal regularity.”

[75] Anayasa [Constitution] art. 148(2) (1982) (Turkey). 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).

[76] 23 AMKD 282 (1987).

For Chapter 3, Conclusion, Bibliography and Index, click here.

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)