Amending Clauses Grant Constituted Rather Than Constituent Authority: Why Supreme Courts Strike Down Constitutional Amendments

Constitutional courts worldwide increasingly face a profound structural question: when a legislature passes a constitutional amendment, does it possess the absolute authority to change anything it wants? The answer dictates whether a temporary political majority can legally dismantle a democracy from the inside.[3]

When supreme courts strike down these amendments, they rely on a strict legal boundary between the power to create a state and the power to manage it. This boundary separates "constituent power" from "constituted power," determining who actually holds the ultimate authority over a nation's foundational text.[1]

Primary constituent power belongs exclusively to the people or the original framers who establish a new constitutional order. This authority is legally boundless, operating before the state's rules even exist. Once the constitution is ratified, it creates constituted powers, including the legislature, to govern the state.[2]

Because these bodies are creations of the constitution, their authority is inherently limited by the document that gave them life. The critical leap in modern jurisprudence is classifying the legislature's power to amend the constitution as a constituted power, rather than a continuation of the framers' original authority.[1][3]

Legal scholar Yaniv Roznai formalized this in his 2017 text on amendment limits. "As a trustee, [the amendment power] possesses only fiduciary power; hence, it must ipso facto be intrinsically limited by nature," Roznai writes. A derivative body cannot legally destroy the instrument that created it.[2]

Textual Shields Against Democratic Suicide

Some nations explicitly codify this limitation to prevent authoritarian legalism. The Weimar Republic's legal dissolution demonstrated how a constitution lacking unamendable provisions could be weaponized against itself. The 1933 Enabling Act, passed through legitimate amendment procedures, legally dismantled Germany's democratic structures.

Post-war framers recognized that procedural compliance was insufficient to protect the state. Article 79(3) of the 1949 German Basic Law was the direct response to this historical trauma. It explicitly shields the federal structure and the core principles of human dignity from any legislative alteration.

The Federal Constitutional Court strictly enforces this eternity clause, ensuring that no parliamentary supermajority can legally repeat the Weimar collapse. Even if a political party secured a unanimous vote in the Bundestag, it could not legally amend these foundational principles under the current constitutional order.

The presence of an eternity clause transforms the theoretical constituent-constituted divide into a hard textual rule. The court does not have to theorize about the limits of the legislature's power; it simply points to the boundary drawn by the framers in 1949.

India and the Implied Limits of Amendment

Most global constitutions lack an eternity clause, forcing courts to look elsewhere. The Supreme Court of India pioneered the doctrine of implicit unamendability in 1973 with its landmark 7:6 decision in Kesavananda Bharati v. State of Kerala. The ruling fundamentally altered the balance of power in the world's largest democracy.

The crisis began when the Kerala government passed the 1963 Kerala Land Reforms Act, restricting the property rights of religious institutions. Sri Kesavananda Bharati challenged the state's acquisition of his institution's land, triggering a monumental legal battle over the absolute sovereignty of the Indian Parliament.

The Indian Parliament had passed the 24th, 25th, and 29th Amendments, explicitly seeking to curtail judicial review and grant itself absolute power to amend fundamental rights. The executive branch argued that the amending power under Article 368 was legally boundless and immune from judicial interference.

The Supreme Court rejected this absolute claim. Justice Hans Raj Khanna articulated the Basic Structure Doctrine, declaring that the Constitution contains essential features—such as democracy and secularism—that are beyond legislative reach. The Parliament, exercising a constituted power, cannot destroy the primary constituent power's foundational design.[3]

Colombia and the Prohibition on Replacement

The constituent-versus-constituted framework has also migrated to Latin America. The Constitutional Court of Colombia developed the "substitution of the constitution" doctrine to police the boundaries of legislative amendments. The court evaluates whether an amendment merely modifies the text or replaces it entirely.[1]

In its 2005 ruling, Opinion C-1040/05, the Colombian court evaluated an amendment designed to grant sweeping legislative powers to the Council of State without judicial review. The court determined that this change would fundamentally alter the separation of powers, effectively creating a new constitutional order.[1]

The Colombian justices explicitly anchored their ruling in the constituent-constituted divide. "Congress derives its power to reform the Constitution from the constitution itself. It has a derivative or secondary status," the court stated, ruling that replacing the constitution violates the legislature's competence.[1]

This doctrine requires the court to conduct a complex qualitative analysis. The justices must identify the essential elements of the 1991 Constitution and determine whether the proposed amendment contradicts those core premises. If it substitutes a foundational pillar, it is struck down as an ultra vires act.[1]

The Paradox of Judicial Enforcement

While the constituent power theory provides a robust defense against abusive amendments, it generates a profound structural paradox. Constitutional courts are themselves constituted bodies, created by the very document they are interpreting. They possess no primary constituent authority of their own.[1][3]

Critics argue that unelected judges have no more legitimacy to define the limits of the constituent power than the elected legislature does. When a court strikes down a constitutional amendment, a constituted judiciary is overriding a constituted legislature, often relying on unwritten, implicit principles.[1]

Legal scholars refer to this as the central problem of constituent power theory in the context of implicit unamendability. If the dichotomy between primary and secondary power is absolute, allowing a constituted court to enforce it against a co-equal branch strains the theory's logical consistency.[1][2]

Defenders of the doctrine counter that courts are not claiming constituent power for themselves. Instead, they act as the designated guardians of the original constituent will. By striking down ultra vires amendments, the judiciary preserves the constitutional status quo until the people convene a new assembly.[3]

Global Migration of the Doctrine

The reliance on the constituent-versus-constituted distinction is no longer confined to a few pioneering jurisdictions. The doctrine has migrated extensively across the Global South. Courts in Bangladesh, Pakistan, Kenya, and Uganda have all adopted variations of the basic structure doctrine to police legislative amendments.[3][4]

In 1989, the Supreme Court of Bangladesh explicitly relied on the reasoning from Kesavananda Bharati to strike down the Eighth Amendment in Anwar Hossain Chowdhary v. Bangladesh. The amendment sought to decentralize the High Court Division, which the justices ruled destroyed the unitary character of the judiciary.[4]

This global convergence suggests that unamendability is increasingly viewed as an inherent feature of constitutionalism itself. Whether enforced through explicit eternity clauses or implicit basic structure doctrines, the limitation on legislative amendment power reflects a shared anxiety about authoritarian legalism and democratic backsliding.[2][3]

By treating the amending clause as a grant of constituted authority rather than a blank check, supreme courts have established a vital legal firewall. They ensure that the fundamental identity of the state remains tethered to the primary constituent power, protecting the constitution from the institutions elected to govern under it.[3]

The Limits of Judicial Guardianship

The expansion of the unconstitutional constitutional amendment doctrine fundamentally alters the balance of power in modern democracies. It shifts the ultimate authority to determine the state's identity away from elected supermajorities and places it in the hands of constitutional courts, carrying significant political risk.[3]

When a supreme court strikes down a popular amendment, it risks triggering a direct confrontation with the executive and legislative branches. If the political branches refuse to recognize the court's authority to enforce implicit limits, the constitutional order can fracture entirely.[1][3]

Furthermore, the doctrine cannot prevent a genuine exercise of primary constituent power. If a political movement successfully mobilizes the populace to scrap the existing constitution and draft a new one, the constituted court loses its jurisdiction. The basic structure doctrine only protects the current constitution.[2]

The distinction between constituent and constituted power serves as a legal speed bump rather than an impenetrable wall. It forces radical constitutional change out of the ordinary legislative process and into the extraordinary realm of constitution-making, ensuring democracies cannot be legally dismantled by a mere parliamentary vote.[2][3]