Unconstitutional Constitutional Amendments

Is the Application of this Doctrine Always Justified?

Abstract

The question of who and by what can amend a constitution has been widely discussed by scholars around the world. In this debate, the doctrine of unconstitutional constitutional amendments has gained particular relevance in recent years. To understand its argument, this paper begins by examining the theories of sovereignty, constituent power, and Carl Schmitt's constitutional laws doctrine. Thereafter, the contemporary argument for the doctrine will be reconstructed, followed by the proposal of two criteria—one legal and one historical-political—to determine in which cases it is worthwhile to apply the doctrine of unconstitutional constitutional amendments in a particular country. Finally, it will be concluded that despite potential criticisms and challenges, this doctrine plays a crucial role in protecting the integrity of constitutions and safeguarding democratic principles when it applies.