What's an "Unconstitutional Constitutional Amendment"?

A quick look at my latest published research

A new collection of papers has been released in the latest issue (Volume 45, issue 1) of the Manitoba Law Journal, inspired by Richard Albert’s recent groundbreaking, fantastic book Constitutional Amendments: Making, Breaking, and Changing Constitutions.

I’m pleased to have a paper in the collection that examines the idea of unconstitutional constitutional amendments. These are amendments (proposed or enacted) that are themselves found to violate the constitution and are therefore legally illegitimate. Often this is because they were not enacted following the prescribed procedures for amending the constitution. Some constitutions also contain “unamendable” provisions or other substantive limits on how the constitution can be changed.

A more radical type of unconstitutional constitutional amendment occurs in a context where the courts take it upon themselves to decide that a particular change is not permitted because of some implied (i.e. not explicit) rule or because the amendment is so radical that it changes the very identity or “basic structure” of the constitution. This latter kind of unamendability has come to be applied under this theory and is called “basic structure doctrine.” Basic structure doctrine has been applied in several countries, perhaps most notably India, where it has seen the courts strike down multiple amendments on this basis.

My paper (available open access here in pdf form) is titled “The Unconstitutionality of Unconstitutional Amendments” and it examines why basic structure doctrine would not only be inappropriate in Canada, but contrary to the constitutional amending formula itself. It also explains that if judges were to adopt basic structure doctrine in Canada, they would be inappropriately usurping the authority to amend the constitution for themselves. This would be unconstitutional. (This issue is related to, but distinct from, another concept I explore in a recent International Journal of Constitutional Law paper, judicial amendment of the constitution.)

The paper is a mix of constitutional theory, history, and practice, and examines an array of concepts - including the idea of a constituent power, which applies awkwardly, if not inappropriately, in the Canadian context. I hope people will find it interesting!