An unconstitutional constitution? A comparative perspective
* Patterson-Banister Professor of Political Science and H. Malcolm MacDonald Professor of Comparative and Constitutional Law, University of Texas at Austin. Email: gjj69{at}mail.la.utexas.edu
My purpose in this article is to draw upon a rich vein of jurisprudential thinking from judiciaries outside of the United States to address the puzzle of the unconstitutional constitutional amendment. I focus on two nations—India and Ireland—where the question has given rise to some fascinating and instructive jurisprudence. Unlike the United States Supreme Court, courts in these countries have confronted the issue of implied substantive limits to constitutional change through the formal amendment process. The Indian judiciary has invoked the idea of constitutional identity to legitimate overturning amendments, whereas the Court in Ireland has found such activity antithetical to popular sovereignty. In considering what is at stake for constitutional theory and practice, I rely on Edmund Burke to support the option of amendment invalidation, while concluding that if ever confronted with the felt need to exercise this option, sober heads might well wonder whether it would be worth doing.