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Introduction
In recent years, a new puzzle has arisen in our comparative constitutional discourse. Simply put, can constitutional amendments enacted into law be subsequently deemed unconstitutional by the judiciary? The short answer is yes, simply because courts, largely in South Asia and Latin America, have imposed implied (unwritten) substantive constraints on formal constitutional change and have invalidated any offending constitutional amendments. Nevertheless, scholars have generally focused their attention on a descriptive or historical survey of how the notion of unconstitutional constitutional amendments has arisen and developed around the world. 1However, in the author's opinion, the more interesting question has been left unanswered, i.e. should constitutional amendments be judicially invalidated? In other words, we know several judges have shielded their constitutions from some constitutional changes. But, on a normative level, should they have done so? In this article, the author will seek to fill this gap in the academic literature by exploring the normative arguments for and against the judicial enforcement of implicit substantive constraints on constitutional amendments.
At the outset, I shall state the scope of my discussion. In the article, I shall not be examining written constitutions that have explicit 'eternity' clauses, i.e. constitutions that expressly enumerate provisions that may never be amended. For example, Article 79(3) of the German Basic Law states explicitly that any constitutional amendment 'affecting the division of the Federation into Länder', human dignity, or the democratic federal structure of government is prohibited. In the same vein, Article 60(4) of the Brazilian Constitution expressly proscribes any constitutional amendments that seek to abolish federalism, universal suffrage, the separation of powers, or individual rights. Instead, the focus of my inquiry will be on constitutions that do not have such 'immutable' clauses and are silent on whether there are implied 'basic features' that can never be amended. Furthermore, I shall be seeking herein to explore whether courts should impose implied constraints on the substantive content of constitutional amendments. This is a different question from whether courts should examine the process by which the impugned constitutional amendment was enacted, an issue which I believe is uncontroversial or at least very much less so. If a constitution requires a constitutional amendment to be passed by a super-majoritarian...