An unconstitutional constitution? A comparative perspective

International Journal of Constitutional Law

Volumn 4, Issue 3, 2006, Pages 460-487

  Jacobsohn, Gary Jeffrey ^a  

^a UNIVERSITY OF TEXAS AT AUSTIN   (United States)

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EID: 33746056507     PISSN: 14742640     EISSN: 14742659     Source Type: Journal    
DOI: 10.1093/icon/mol016     Document Type: Article

References (116)

1. Edmund Burke, To the Chairman of the Buckinghamshire Meeting - 12 April 1780, in Selected Letters of Edmund Burke 243 (Harvey C. Mansfield, Jr. ed., Univ. Chicago Press 1984).
2. The most recent telling of this story may be found in Margaret Talbot, The Scalia Court, The New Yorker, February 28, 2005, at 84.
3. See, e.g., Raymond Ku, Consensus of the Governed: The Legitimacy of Constitutional Change, 64 Fordham L. Rev. 535, 540 (1995).
4. The cases are National Prohibition Cases, 253 U.S. 350 (1920)
5. and Leser et al. v. Garnett et al, 258 U.S. 130 (1922).
6. The text of the Corwin amendment: "No amendment shall be made to the Constitution which will authorize or give to Congress the power to abolish or interfere, within any State, with the domestic institutions thereof, including that of persons held to labor or service by the laws of said State." Cong. Globe, 36th Cong., 2d Sess. 1263 (1861).
7. For further discussion of the amendment, see Mark Brandon, Free in the World: American Slavery and Constitutional Failure (Princeton Univ. Press 1998)
8. and A. Christopher Bryant, Stopping Time: The Pro-Slavery and 'Irrevocable' Thirteenth Amendment, 26 Harvard J. L. & Pub. Pol'y 501 (2003).
9. See the Uganda case, Ssemogerere et al. v. Attorney General, Constitutional Appeal No. 1 of 2002 (2004). Another decision from Africa, the famous South African Certification case, while not technically an amendment case, is critical in revealing the reasoning that can lead judges to declare constitutional amendments unconstitutional. Certification of the Constitution of the Republic of South Africa, 1996, CCT 23/96.
10. The occasion was a group of cases known as the "Reform of the Pensionary System of Law" cases (No. 0050-2004-AI/TC, No. 004-2005-PI/ TC, No. 007-2005-PI/TC, No. 009-2005-PI/TC), decided in 2005.
11. Id., Section VI, A.
12. The best account of the transition from British to American notions of sovereignty will be found in Edmund S. Morgan, Inventing the People: The Rise of Popular Sovereignty in England and America (W. W. Norton 1988).
13. Jeffrey Rosen, Was the Flag Burning Amendment Unconstitutional? 100 Yale L J. 1073, 1092 (1991).
14. "Walter Dellinger, The Legitimacy of Constitutional Change: Rethinking the Amendment Process, 97 Harvard L. Rev. 386, 387 (1983).
15. Jamesa Madison, Notes of Debates in the Federal Convention of 1787 564 (W. W. Norton 1987).
16. Akhil Reed Amar is, perhaps, the most prominent exponent of the theory of popular sovereignty as a continuing source for the legal authority to "alter or abolish," in his account even independently of the article 5 process. Among others, principally James Wilson, Amar enlists Madison in support of his (and controversially the American framers') position that popular sovereignty provides a license to change the Constitution in accordance with majoritarian sentiment. Akhil Reed Amar, The Consent of the Governed: Constitutional Amendment Outside Article V, 94 Colum. L. Rev. 457, 470-471(1994).
17. The Federalist No. 49, at 314-315 (James Madison) (Clinton Rossiter, ed., 1961).
18. See Sanford Levinson, Veneration and Constitutional Change: James Madison Confronts the Possibility of Constitutional Amendment, 21 Tex. Tech L. Rev. 2443 (1990).
19. Lest anyone worry about the scope of my ambitions, I hasten to add that challenging "government of the people, by the people, and for the people" is not my purpose here, although it may be of more than passing interest that the author of that immortal prose once saw fit to refer to popular sovereignty as "a pernicious abstraction." The abstract character of the discourse on sovereignty is, of course, present throughout its history. As Gordon Wood has noted, the doctrine of sovereignty "was the single most important abstraction of politics in the entire Revolutionary era." Gordon S. Wood, The Creation of the American Republic, 1776-1787 345 (Univ. N.C. Press 1969).
20. State (Ryan) v. Lemmon, [1935] 170 I.R. 197.
21. Id. at 198.
22. Quoted in Rory O'Connell, Guardians of the Constitution: Unconstitutional Constitutional Norms, 4:48 J. Civil Liberties 60. (1999).
23. Supra note 15, at 180.
24. Id. at 242.
25. Carl Schmitt, Legality and Legitimacy 20 (Duke Univ. Press 2004).
26. This article addresses only the kind of formal constitutional change that occurs through the amendment process. There is a vast literature that is concerned with constitutional transformation occurring outside of the officially designated procedures set out in constitutional provisions. In this regard, the work of Bruce Ackerman has been critically important. His ongoing We the People project is devoted to the understanding that the people are the source of all legitimate constitutional change, both formal and informal. Sanford Levinson has drawn attention to the affinities between Ackerman's popular sovereignty-based theory of constitutional change and the views of Carl Schmitt. For Levinson, the "sovereignty-oriented positivism" of both of these theorists would lead them (contra Jeffrey Rosen and others) to accept as legitimate the repeal of the First Amendment as long as this decision emanated from the authentic voice of the demos. Sanford Levinson, Transitions, 108 Yale L.J. 2215, 2224 (1999).
27. As the German scholar Dietrich Conrad has pointed out, the Enabling Act was considered at the time to be a legitimate use of the amending power, and thus its revolutionary implications in creating unsupervised dictatorial power should not be seen as an example of emergency power. Dietrich Conrad, Limitation of Amendment Procedures and the Constituent Power, in Indian Year Book of International Affairs 387 (1970). It thus bears a resemblance to what happened in Ireland.
28. Quoted in John A. Murphy, The 1937 Constitution - Some Historical Reflections, in Ireland's Evolving Constitution, 1937-97: Collected Essays 13 (tim Murphy & Patrick Twomey eds., Hart 1998).
29. Article 26 and the Regulation of Information (Services outside the State for the Termination of Pregnancies) Bill 1995 [1995] 9 IESC 38.
30. Id. at 38.
31. Riordan v. An Taoiseach, [1999] IESC 1, 4, available at www.bailii.org/ ie/cases/IESC/1999.
32. Hanafin v. Minister of the Environment, [1996] 2 ILRM 61, 183.
33. Id. at 183. Another excellent application of this principle may be found in Sri Lanka. The Constitution expressly provides for the amendment or repeal of any of its provisions or for the repeal of the entire Constitution. In the case of major changes the people must affirm them through a referendum. See in this regard In Re The Thirteenth Amendment to the Constitution and the Provincial Councils Bill [1987] 2 Sri L. R. 312, where this procedure is specifically related to the theory of popular sovereignty.
34. For more discussion of the tension between article 41 and popular sovereignty, see John M. Kelly, The Irish Constitution 1258 (Gerard Hogan & Gerry Whyte eds., Butterworths 2003) (1961).
35. Edmund Burke, Tracts Relating to Popery, in I: The Revolutionary War, II: Ireland 1765 (R. B. Mcdowell ed., Oxford Univ. Press 1991).
36. Carl Schmitt, Legality and Legitimacy 46 (Duke Univ. Press 2004).
37. Abraham Lincoln, First Inaugural Address, in Donald P. Kommers et al., American Constitutional Law: Essays, Cases, and Comparative Notes 1050 (Rowman & Littlefield 2004).
38. Justice P.B. Gajendragadkar as quoted in Kesavananda Bharati v. State of Kerala, 1973 SC 1461, 1492.
39. Id. at 2027.
40. Id. at 1495.
41. I have discussed this development in detail in Gary Jeffrey Jacobsohn, The Wheel of Law: India's Secularism in Comparative Constitutional Context (Princeton Univ. Press, 2003). Because religion in India is so deeply embedded in the existing social structure, indifference to the substance of religious belief is a much costlier indulgence than it is in places where the spiritual and temporal are not so tightly entwined.
42. As was said in Minerva Mills Ltd. V. Union of India, Air 1980 SC 1789 (hereafter Minerva Mills), "[t]he power to destroy is not a power to amend." Minerva Mills at 1798.
43. Kesavananda Bharati v. State of Kerala, supra note 33, at 1624.
44. Shankari Prasad Deo v. Union of India 1951 (3) Scr 106
45. Sajjan Singh v. State of Rajasthan 1965 (1) SCR 933. The use of the amendment process to preclude judicial review of particular issues (mainly property) began under Mrs. Gandhi's father, Prime Minister Jawaharlal Nehru, although his efforts never aroused the same concerns as did his daughter's in subsequent years.
46. L.C. Golak Nath and Others v. State of Punjab AIR 1967 SC 1643.
47. Granville Austin, Working a Democratic Constitution: The Indian Experience 198 (Oxford Univ. Press, 1999).
48. Id. at 1656.
49. Id. at 1736.
50. Adamson v. California, 332 U.S. 46, 75 (1947).
51. As noted by Granville Austin, the Court's decision "was a masterpiece of unintensional timing, for it gave Mrs. Gandhi a cause and an enemy in her quest for renewed power." Supra note 41, at 198
52. The essence of the Court's ruling is in line with William Harris's theoretical reflections on constitutional change. "Even for important existing features it would seem that rather than ranging over the constitutional scheme to pick out elements that might arguably be more fundamental in the hierarchy of values, it would be more advisable to develop essential principles that would guide a choice as to whether a particular Constitutional change were substantively invalid. That is, a Constitutional provision would be fundamental only in terms of some articulated political theory that makes sense of the whole Constitution." William Harris, The Interpretable Constitution 188 (Johns Hopkins Univ. Press 1993).
53. Kesavananda Bharati v. State of Kerala, supra note 33, at 1691.
54. Id. at 2006.
55. Id. at 2044. A similar sentiment appears in the opinion of Justice S.M. Sikri: "[S]hort of repeal of the Constitution, any form of Government with no freedom for the citizens can be set up by Parliament by exercising its powers under Article 368."
56. Id. at 1490.
57. Upendra Baxi, Courage Craft and Contention: The Indian Supreme Court in the Eighties 70 (N. M. Tripathi Priv. Ltd. 1985).
58. Indira Gandhi v. Raj Narain, AIR 1975 SC 2299, 2469.
59. Minerva Mills, supra note 37, at 1789.
60. Text of the Forty-second Amendment.
61. Minerva Mills, supra note 37, at 1798.
62. Frederick Schauer, Amending the Presuppositions of a Constitution, in Responding to Imperfection: The Theory and Practice of Constitutional Amendment 145 (Sanford Levinson ed., Princeton Univ. Press 1995).
63. The Constitution of Brazil may not be amended during a state or federal intervention, defense, or siege. C.F. Art. 60, section 1. It is popularly viewed as a mechanism of self-preservation in a country with a history of authoritarian interventions in the constitutional text.
64. Instrumental in the education of Indian judges regarding the German experience was the work of Dietrich Conrad, a German scholar of Indian politics and law. See, e.g., Dietrich Conrad, Limitation of Amendment Procedures and the Constituent Power, 15-16 The Indian Year Book of International Affairs (1970). Conrad's work was cited by Indian justices in several of the decisions discussed in this article.
65. The Southwest Case, BverfGE 1, 14 (1951): "That a constitutional provision itself maybe null and void, is not conceptually impossible just because it is a part of the constitution. There are constitutional provisions that are so fundamental and to such an extent an expression of a law that precedes even the constitution that they also bind the framer of the constitution, and other constitutional provisions that do not rank so high may be null and void, because they contravene those principles...." Privacy of Communications Case (Klass Case), BverfGE 30, 1 (1970): "The purpose of Article 79, paragraph 3, as a check on the legislator's amending the Constitution is to prevent the abolition of the substance or basis of the existing constitutional order, by formal legal means of amendment... and abuse of the Constitution to legalize a totalitarian regime." Fundamental constitutional alteration is not prohibited as long as it meets the criterion of coherence. "Restrictions on the legislator's amending the Constitution... must not, however, prevent the legislator from modifying by constitutional amendment even basic constitutional principles in a system-immanent manner."
66. Schmitt's thoughts on popular sovereignty and constitutional change are well treated in Peter C. Caldwell, Popular Sovereignty and the Crisis of German Constitutional Law: The Theory and Practice of Weimar Constitutionalism (Duke Univ. Press 1997).
67. Walter F. Murphy, Slaughter-House, Civil Right, and Limits on Constitutional Change, 32 AM. J. Juris. 1, 17 (1987). For Murphy, the addition of the Thirteenth and Fourteenth Amendments provided the Constitution with the intellectual coherence it had previously lacked, and in doing so enhanced, rather than undermined, the integrity of its core principles.
68. Aristotle, The Politics of Aristotle 98 (Ernest Barker trans., Oxford Univ. Press 1962).
69. Id. at 99.
70. Quoted in Udo Thiel, Individuation, in 1 Cambridge History of Seventeenth Century Philosophy 253 (Daniel Garber & Michael Ayers eds., Cambridge Univ. Press 1998).
71. Kesavananda Bharati v. State of Kerala, supra note 33, at 1860.
72. Supra note 37, at 1824.
73. Christopher Eisgruber, Is the Supreme Court An Educative Institution? 67 N.Y.U.L. Rev. 962, 971 (1992).
74. Coleman v. Miller, 307 U.S. 433, 459 (1939).
75. Luther v. Borden, 48 U.S. 1 (1849).
76. At the state level there has occasionally been less reluctance to engage such issues. In Downs v. City of Birmingham, 198 Southern Reporter 231 (1940), the Supreme Court of Alabama held that an amendment to the State Constitution must be consistent with a republican form of government as required by the federal Constitution. Some states (California, Delaware) distinguish in their constitutions between "amendment" and "revision," the latter intended to apply to pervasive changes in constitutional arrangements. The Spanish Constitution of 1978 has a similar two-tier amending system. For a comparative analysis of the various approaches to constitutional amendment
77. see Elai Katz, On Amending Constitutions: The Legality and Legitimacy of Constitutional Entrenchment, 29 Colum. J. L. & Soc. Problems 251 (1996). Katz argues that while everything in a constitution should be amendable, certain clauses should be harder to amend than others.
78. S. R. Bommai v. Union of India, 3 SC 1 (1994).
79. The case is discussed at length in Gary J. Jacobsohn, The Wheel of Law 125-160 (Princeton Univ. Press 2003).
80. Constituent Assembly Debates, 7 Official Reports 150 (Delhi: Lok Sabha Secretariat). The delegate, Alladi Krishnaswami, was a future Supreme Court Justice.
81. Thus the judge in Kesavananda who raised the following question did not get a satisfactory answer. "And what is the sacredness about the basic structure of the Constitution? Take the republican form of government, the supposed cornerstone of the whole structure. Has mankind, after wandering through history, made a final and unalterable verdict that it is in the best form of government? Does not history show that mankind has changed its opinion from generation to generation?" Kesavananda Bharati v. State of Kerala, supra note 33, at 1948.
82. Edmund Burke, Speech On a Motion made in the House of Commons, the 7th of May 1782, for a Committee to inquire into the state of the Representation of the Commons in Parliament, in On Empire, Liberty, and Reform: Speeches and Letters of Edmund Burke 275 (David Bromwich ed., Yale Univ. Press 2000).
83. In fact, not only in South Asia has he been so viewed. Thus Harold Laski pointed out that " [on] Ireland, America, and India, he [Burke] was at every point upon the side of the future.... " Quoted in Uday Singh Mehta, Liberalism and Empire: A Study in Nineteenth-Century British Political Thought 155 (Univ. Chicago Press 1999).
84. For example, Justice Khanna quoting Burke: "A state without the means of some change is without the means of its own conservation. Without such means it might even risk the laws of that part of the Constitution which it wished the most religiously to preserve." Kesavananda Bharati v. State of Kerala, supra note 33, at 1847.
85. The best study of how Burke's Irish roots shaped his political ideas is Conor Cruise O'Brien, The Great Melody: A Thematic Biography of Edmund Burke (Univ. Chicago Press 1992).
86. Lon Fuller, The Morality of Law 42 (Yale Univ. Press 1964).
87. Edmund Burke, Speech On Fox's East India Bill, in On Empire, Liberty, and Reform, supra note 73, at 292 (David Bromwich ed.,Yale Univ. Press 2000).
88. Quoted in Frederick G. Whelan, Edmund Burke in India: Political Morality and Empire 281 (Univ. Pittsburgh Press 1996).
89. Fuller, supra note 77, at 44.
90. Supra note 51, at 2470.
91. Supra note 73, at 274. Edmund Burke, Speech On a Motion made in the House of Commons, the 7th of May 1782, for a Committee to inquire into the state of the Representation of the Commons in Parliament, in On Empire, Liberty, and Reform: Speeches and Letters of Edmund Burke 275 (David Bromwich ed., Yale Univ. Press 2000).
92. Quoted in Francis Canavan, Prescription of Government, in Daniel Ritchie, Edmund Burke: Appraisals & Applications 259 (Transaction Publishers 1990).
93. One of the most thoughtful accounts of Burke's views on India is contained in Uday Mehta's Liberalism and Empire, in which Burke is distinguished from such theorists as John Stuart Mill on the basis of his - Burke's - preference for the local over the universal, such that it led him to see, in a way that was not evident to these other thinkers, the abuses of empire. Mehta's argument is very persuasive, although he overstates Burke's renunciation of universal principles. Thus it is incomplete to say,: For Burke... obligations and the norms of justice spring from the local and the conventional." Supra note 74, at 176.
94. similar account, highlighting Burke's aesthetic theory, may be found in Luke Gibbons, Edmund Burke and Ireland: Aesthetics, Politics, and the Colonial Sublime 166-180 (Cambridge Univ. Press 2003). "Geographical morality" is present in some of the sentiments expressed in Kesavananda. For example: "Law varies according to the requirements of time and place. Justice thus becomes a relative concept varying from society to society according to the social milieu and economic conditions prevailing therein."
95. Kesavananda Bharati v. State of Kerala, supra note 33, at 1735.
96. Edmund Burke, Letter to the Sheriffs of Bristol, in 2 The Works of Edmund Burke 119 (Little, Brown 1839).
97. Yet just as the presence of a horizontal surface assures the viewer that the latter contrast pertains to the category of tables, the constitutional observer will have to be satisfied that analogous generic criteria establish a common basis for comparing the two bodies politic.
98. See, for example, David Lewis, Survival and Identity, in The Identities of Persons (Amelie Oksenberg Rorty ed., Univ. Calif. Press 1976)
99. and Derek Parfit, Personal Identity, 80 Phil. Rev. 3 (1971).
100. Lewis, supra note 86, at 17-18.
101. Similarly, Thomas Reid wrote: "[Identity] admits of a great changes of the subject, providing the change be gradual; sometimes even of a total change, And the changes made...consistent with identity differ from those that are though to destroy it..." From Essays On The Intellectual Powers Of Man (1785), excerpted in Personal Identity 51 (Raymond Martin & John Barresi eds., Blackwell 2003).
102. Parfit, supra note 86, at 17.
103. Francis P. Canavan, The Political Reason of Edmund Burke 134 (Duke Univ. Press, 1960). The same thought is conveyed in Gerald W. Chapman's depiction of Burke's view of the nation as "a 'moral essence' - a cultural personality in time.
104. Gerald W. Chapman, Edmund Burke and The Practical Imagination 90 (Harvard Univ. Press 1967). Accordingly, constitutional change is acceptable and desirable to the extent that it respects what is essential to national continuity.
105. Id. at 166.
106. Id. at 166.
107. Ronald Dworkin, Law's Empire 176-275 (Harvard Univ. Press 1986). My example of a constitutional narrative follows Dworkin's chain novel illustration. Id. at 228-238.
108. As William Harris has pointed out, "[T]he kinds of alteration an example of a genre can bear are limited and... going beyond these limits will not only change the characteristics of the example but also will change the genre that it represents." William Harris, The Interpretable Constitution 171 (Johns Hopkins Univ. Press 1993).
109. Burke, supra note 73, at 278. (David Bromwich ed., Yale Univ. Press 2000).
110. Kesavananda Bharati v. State of Kerala, supra note 33, at 1986.
111. Id. at 2010.
112. Edmund Burke, Reflections on the Revolution in France 38 (Bobbs-Merrill 1955).
113. Kesavananda Bharati v. State of Kerala, supra note 33, at 2009.
114. Learned Hand, The Spirit of Liberty 164 (Alfred A. Knopf 1953).
115. Lawrence Sager, Justice in Plain Clothes: A Theory of Constitutional Practice 82 (Yale Univ. Press 2005).
116. Id. at 164.