Unconstitutional Constitutional Courts

Unconstitutional Constitutional Courts

The doctrine of “unconstitutional” constitutional amendments has made several appearances in American constitutional theory (most recently in the early 90’s, during the controversy about the Flag Desecration Amendment, but also when the 13th and 18th amendments were adopted), although not generally accepted as a matter of constitutional practice.

The Flag Desecration Amendment, often referred to as the Flag-burning Amendment, is a controversial proposed constitutional amendment to the United States Constitution that would allow the United States Congress to statutorily prohibit expression of political views through the physical desecration of the flag of the United States.

The basic idea is that there might be an amendment that, despite being adopted according to the established amendment procedure, either: (1) contradicts an explicit limit to constitutional reform (an example can be found in Article 60(4) of the Federal Constitution of Brazil: “No proposal of amendment shall be considered which is aimed at abolishing… individual rights and guarantees”); or (2) contradicts an implicit limit to constitutional reform by involving a change that is so fundamental that amounts to the creation of a new constitutional regime rather than to a mere amendment of an already existing one (consider, for example, an amendment that modifies a typical liberal constitution in order to put the executive, legislative, and judicial powers in the hands of a single individual).

In Latin American constitutionalism, where the doctrine has been adopted by several courts (including courts in Colombia, Perú, and Venezuela), there is an additional twist. Explicit and implicit limits to constitutional reform, it is usually argued, only operate against government (e.g. a legislature making use of the ordinary amendment procedure). In other words, they limit the scope of the ordinary power of constitutional reform but have no effect whatsoever against ‘the people’ in the exercise of their constituent power (the unlimited power to create and re-create Constitutions ). Constituent power is usually exercised through an extraordinary mechanism such as a Constituent Assembly.

Naturally, the institution which usually has or assumes jurisdiction to declare an amendment ‘unconstitutional’ is a Constitutional Court or its equivalent. Now, what happens if it is the very amendment creating the constitutional court what is being claimed to be ‘unconstitutional’? This issue was in fact considered a few years ago by the Constitutional Chamber of the Supreme Court of Justice of Costa Rica. The Constitutional Chamber was established in 1989 through an amendment to Article 10 of the Political Constitution. In 2002, Hubert May Cantillano presented an action claiming, among other things, that since that amendment gave a specialized chamber of the Supreme Court of Justice the exclusive power to declare invalid the acts of the other branches of government, it altered the constitutional regime in a fundamental way and thus was out of the scope of the ordinary power of constitutional reform.

After rejecting the claim on procedural grounds, the Constitutional Chamber expressed that what May Castillano was asking the court was a “juridical impossibility”. According to the court, even if it agreed to declare the amendment in question unconstitutional, its decision would be nothing but a nullity, an act without any legal effect. That is to say, for the Constitutional Chamber to declare the amendment unconstitutional would be to recognize that it lacked the very power it was attempting to exercise. Apart from the fact that the substantive merits of the action presented by May Cantillano were dubious, to say the least, I wonder if you think there is a way out of the puzzle identified by the court and described in the previous two sentences. That is, can a Constitutional Court, confronted with the right set of arguments, declare its very existence ‘unconstitutional’?

the actual legality or constitutionality of the judicial branch is not in theory different than that of any other branch of government where there is a written constitution or other similar document that spells out the powers of the various branches. The difference is all in practice and not in theory, because the difference is who gets to say whether a branch of government has exceeded its constitutional remit. You might call it a who-watches-the-watchers issue: at some point, you will reach some institution that is meant to watch itself. Of course, as you point out, there is the ultimate option of exercising political power to abolish or reign in a “rogue”constitutional court. So the ultimate watcher is the people. (Is that what is meant by “weak constitutionalism”? I don’t know the terminology.)

Now for the really tricky question: what about countries without written Constitutions ? (And the UK doesn’t count, since the doctrine of parliamentary supremacy means–for now, anyway–that the judicial branch is subsumed within, and subject to, the legislature.) Today, I seem to be all about giving blithe, simple answers to profound, complex questions but I can’t even wrap my head around that question, let alone answer it.

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Author: international

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