Unconstitutional constitutional amendment

The ability and willingness of the Supreme Court of the United States to overturn any constitutional amendment is questionable.

[10] In a 2018 review of Roznai's book, Adrienne Stone argues that there is a sound case that an amendment that transforms a constitution into some entity other than a constitution–for instance, by eliminating the rule of law–would be unconstitutional.

[11] Contemporary Germany arose from the ashes of World War II and the totalitarian experience of Nazism.

[14] This was a significant reversal from 1951—when the Indian Supreme Court declared that the constitutional amendment power was unlimited.

[15] Israel does not have a unified constitution; its legal framework is instead codified in a series of quasi-constitutional Basic Laws.

In July 2023, the ruling coalition under Prime Minister Benjamin Netanyahu passed an amendment to Basic Law: The Judiciary, which defines the powers of that branch of government.

It would have limited the powers of the Supreme Court of Israel to strike down legislation that it considers contrary to the Basic Laws.

[16] On 1 January 2024, the Supreme Court ruled 12-3 that it may reject amendments to Basic Laws in "extreme" circumstances.

[16] In the decision, the justices noted that the judicial overhaul would jeopardise the basic characteristic of Israel as a democratic country.

This is because Italy's republican form of government is explicitly protected in an entrenched clause, which is impossible to amend.

In 1973, President of Finland Urho Kekkonen requested a four-year term extension by means of an emergency constitutional amendment, in order to avoid arranging presidential elections.

In a 2016 op-ed, published just a month after the 2016 US presidential election, US law professor Erwin Chemerinsky argued that the United States Supreme Court should declare the unequal allocation of electoral college votes to be unconstitutional due to it being (in his opinion) contrary to the equal protection principles that the US Supreme Court has found in the Fifth Amendment.

[22] In a 2018 blog post, US law professor Michael Dorf points out that it is possible (as opposed to plausible) for the United States Supreme Court (SCOTUS) to utilize the unconstitutional constitutional amendment doctrine to strike down the unequal apportionment in the United States Senate (which violates the one person, one vote principle); in the very same article, however, Dorf also expresses extreme skepticism that the US Supreme Court (or even a single justice on the US Supreme Court) would actually embrace the unconstitutional constitutional amendment doctrine—at least anytime soon.

[3] In a 2019 article, Yaniv Roznai and Tamar Hostovsky Brandes embraced the argument previously proposed by Rosalind Dixon and David Landau and argued that since the constitutional replacement process can also be abused, it would be permissible and legitimate for courts to strike down constitutional replacements that are not fully democratic or inclusive.

[23] United States law professor Mike Rappaport criticizes the unconstitutional constitutional amendment doctrine and argues that the adoption of this doctrine in the US would undermine popular sovereignty because nine unelected US Supreme Court justices with life tenure would give themselves the power to overturn the will of a huge majority of the American people.

[25] In a 1985 article of his, United States law professor John R. Vile argues against the idea of having judges impose implicit limits on the United States constitutional amendment power for fear that such judicial power could just as easily be used for bad or evil ends as for good or desirable ends–especially if the original text of a particular constitution, such as the original text of the United States Constitution, is not particularly liberal or progressive to begin with.

[26] For instance, Vile points out that a reactionary United States Supreme Court could have struck down the progressive Reconstruction Amendments (which abolished slavery and extended both human rights and the suffrage to African-Americans) as being unconstitutional and also struck down hypothetical progressive amendments that would extend legal protection to the handicapped, the aged, and the unborn.

In 1893, American jurist Thomas M. Cooley endorsed the idea of implicit limits on the United States constitutional amendment power.
Akhil Amar argues that an amendment that abolishes free speech would be unconstitutional.
Richard George Wright argues that an amendment that entrenched white supremacy and reintroduced segregation would be unconstitutional.
The Indian Supreme Court building. Several decades ago, the Indian Supreme Court adopted the unconstitutional constitutional amendment theory.
Erwin Chemerinsky called on the US Supreme Court to use the 5th Amendment to make the allocation of Electoral College votes among US states exclusively based on population.
The US Senate's side of the Capitol Building in Washington, DC . Michael Dorf speculated about the possibility of the US Supreme Court declaring the unequal apportionment in the US Senate to be unconstitutional.
The US Supreme Court building. Mike Rappaport argues that the adoption of the unconstitutional constitutional amendment doctrine would give the Court way too much power and undermine democracy and popular sovereignty .