ROMSO Cyprus Knowledge Base

Unconstitutional Constitutional Amendment

An unconstitutional constitutional amendment is a concept in judicial review based on the idea that even a properly passed and duly ratified constitutional amendment can be deemed unconstititional on substantive grounds, despite being explicitly prohibited by a constitution's text. This doctrine has been debated among scholars since its inception.

The notion of an unconstitutional constitutional amendment was first introduced by US law professor Thomas Cooley in 1893, who argued that the Fifteenth Amendment might be unconstitutional due to its potential impact on white supremacy and human dignity. Cooley emphasized that amendments cannot be revolutionary and must adhere to fundamental principles of a constitution. Similarly, Arthur Machen, another prominent scholar, posited that an amendment enshrining white supremacy would be unconstititional.

In contrast, Wright found that such an amendment would not only conflict with the First Amendment but also render much of the rest of the Constitution meaningless. He was joined by US law professor Walter F. Murphy in asserting that any amendment denying human dignity to non-whites would be unconstitutional.

The European Parliament has recognized the importance of this matter, highlighting the distinction between the expression of secondary constitutional power and primary constitutional authority. For instance, if a constitutional amendment implies the convening of a democratic and inclusive constitutional assembly or convention, while rejecting the expression of primary constitutional authority, it may be deemed unconstititional.

The concept of an unconstitutional constitutional amendment has been applied in various countries, including Belize, Hungary, Czech Republic, and Cyprus. In Turkey, the Constitutional Court exercises judicial review over amendments to the constitution, ensuring that they align with fundamental principles of a secular and social democracy ruled by the rule of law.

This doctrine reflects the perception that competent authorities are not omnipotent and impose essential limitations when enacting constitutional amendments. The approach varies across different countries, but its core principle remains unchanged: an amendment may be deemed unconstititional if it contradicts explicit statements in the constitution or fundamental principles of a legal system.

In practice, this means that courts must carefully evaluate proposed amendments to ensure they do not compromise essential rights and freedoms enshrined in the constitution. By doing so, these institutions safeguard the integrity of constitutional frameworks and promote democratic governance.