Constraining Constitutional Change

David Landau & Rosalind Dixon

Abstract: This paper, presented at a symposium on Constitution-Making and Constitutional Design

held at the Clough Center for the study of Constitutional Democracy at Boston College Law School on
October 31, 2014, tackles a significant gap in constitutional theory -- the legal regulation of
constitutional replacement. Recent work has recognized the risks posed by constitutional amendment
to democracy and has developed a series of tools to mitigate those risks. In particular, would be
authoritarian actors can engage in abusive forms of constitutional change that perpetuate their
power and marginalize minority groups. In response, courts around the world have recognized that
amendment can be limited in ways that go beyond the standard textual regulation of procedure to
encompass both substantive ex ante controls (eternity clauses) and substantive ex post controls (the
unconstitutional constitutional amendment doctrine). Constitutional replacement is usually seen as
fundamentally different from constitutional amendment, but the two are often used jointly in
projects of abusive constitutional change. Scholars and courts should thus consider ways in which
constitutional replacement might be limited. The same list of possibilities utilized to constrain
constitutional amendment -- substantive as well as procedural limits, and ex post as well as ex ante
controls -- exists to constrain constitutional replacement. Moreover, each of these possibilities has
actually been used, with varying degrees of success, in constitution-making processes in contexts like
Venezuela, Bolivia, and South Africa. The key question is under which political conditions these tools
might be effective. Based on the case studies, we suggest that those conditions are demanding but
not impossible to meet in real-world constitution-making.

Constitutions are an important instrument for promoting and entrenching commitments to

democracy. But all too frequently constitutional processes are used to promote distinctly anti-
democratic ends – or to advance the cause of would-be autocrats by removing democratic checks
and balances on the exercise of political power.1 This kind of “abusive” constitutional action can also
involve changes to the text of a written constitution, either by way of formal constitutional
amendment or replacement, which are often difficult to reverse.2 By amendment, political actors
can, for example, extend term limits or undermine institutions like courts. Wholesale constitutional
replacement may be a bigger threat, because actors can take a variety of coordinated actions against
the political order: Recent examples include the constitutional replacement by Fidesz in Hungary in
2011, the Venezuelan constitutional replacement by Hugo Chavez in 2000, the attempted
constitutional replacement by Robert Mugabe in Zimbabwe in 2000, and the replacement of the
Ecuadorian Constitution by Evo Morales in 2007.3 In all cases, the relevant constitutions eroded
democracy, or attempted to do so, and made incumbents significantly more difficult to dislodge.

The field of comparative constitutional law recognizes a set of stock defences against the
possibility that would be autocrats might use the processes of constitutional amendment for anti-

1
David Landau, Abusive Constitutionalism, 47 U.C. DAVIS L. REV. 189 (2013).
2
Id.
3
See Miklos Bankuti et al., Hungary’s Illiberal Turn: Disabling the Constitution, J. DEMOCRACY, July 2012; ALLAN R.
BREWER CARIAS, DISMANTLING DEMOCRACY IN VENEZUELA: THE CHAVEZ AUTHORITARIAN EXPERIMENT (2010); Lloyd
Sachikonye, Constitutionalism, the Electoral System and Challenges for Governance and Stability in Zimbabwe,
4 AFR. J. CONFLICT RESOL. 171 (2004); Masipula Sithole, Fighting Authoritarianism in Zimbabwe, J. DEMOCRACY, Jan.
2001; Catherine M. Conaghan, Ecuador: Correa’s Plebiscitary Presidency, J. DEMOCRACY, Apr. 2008.

Electronic copy available at: http://ssrn.com/abstract=2624842

democratic ends. A well-known example is the unconstitutional constitutional amendments
doctrine, which allows the court to hold certain amendments unconstitutional for failing to comply
with basic principles.4 Despite its problems from the standpoint of democratic theory, the doctrine is
now often accepted by courts and scholars as a means of democratic defence.5

This article focuses on the much less explored possibility that courts and constitutions might
deploy doctrines constraining constitutional replacement. Recent work in constitutional theory
creates a sharp distinction between constitutional amendment, which can properly be constrained
in order to protect against manipulation, and constitutional replacement, which is supposedly an
exercise of the sovereign power of the people outside of any legal restraints. We argue that this
sharp separation is problematic. Restrictions on constitutional replacement, like those on
constitutional amendment, might be defended on the basis that replacement, like amendment, can
in fact be abused in the name of the people in order to undermine democracy. Restrictions on
amendment might also increase the incentives for political actors to rely on processes of
replacement, where such processes are not similarly constrained. The two forms of restriction may
thus interact at the level of actual practice or political incentives.

Restrictions on amendment might also aid theorists in envisioning the full range of
possibilities for constraining constitutional replacement. Traditional controls on constitutional
amendment have focused on ex ante procedures found within constitutional texts: the requirements
for amending the United States Constitution in article V are an obvious example. But more recent
work has shown that restrictions on constitutional amendment can also be substantive rather than
procedural, since constitutions can contain completely unamendable provisions, and ex post rather
than ex ante, since judges can utilize the unconstitutional constitutional amendments doctrine to
strike down amendments on grounds not explicitly laid out in the constitutional text.

The same range of possibilities is helpful for thinking through potential controls on
constitutional replacement. Existing constitutional texts might govern the process of replacement or
the substance of new constitutional texts. Similarly, judges might impose either procedural or
substantive limits on constitution-making. In fact, there is precedent for nearly all of these forms of
control. In Bolivia, for example, the existing text imposed procedural rules for the approval of any
next text;6 this restriction was contested throughout the constitutional replacement of 2009, but it
exercised influence over that process. And in South Africa in 1996, the Constitutional Court
invalidated the proposed new constitution drafted by a democratically-elected constituent assembly
on the basis of a failure to comply with certain agreed “constitutional principles” negotiated as part
of the transition to democracy in 1992–1993. Finally, in Venezuela and Colombia, courts purported
to define the concept of constituent power and to use it to limit the processes of constitution-
making.

4
See Vicki Jackson, Unconstitutional Constitutional Amendments: A Window into Constitutional Theory and
Transnational Constitutionalism (August 2010) (unpublished manuscript) (on file with author); Gary Jacobsohn,
An Unconstitutional Constitution? A Comparative Perspective, 4 INT. J. CONST. L. 460 (2006); Yaniv Roznai &
Serkan Yolcu, An Unconstitutional Constitutional Amendment – The Turkish Perspective: A Comment on the
Turkish Constitutional Court’s Headscarf Decision, 10 INT’L J. CONST. L.. 175 (2012).
5
Rosalind Dixon & David E. Landau, Transnational Constitutionalism and a Limited Doctrine of Unconstitutional
Constitutional Amendment, 13 INT’L J. CONST. L. (forthcoming 2015).
6
For example, requiring a two-thirds vote of the Congress for the calling of a Constituent Assembly.

Electronic copy available at: http://ssrn.com/abstract=2624842

 We do not argue that these restrictions on constitutional replacement are democratically
legitimate, but simply that their deployment should not be dismissed out of hand. Nor do we suggest
that the imposition of constitutional limits on attempts at either constitutional amendment or
replacement by would-be autocrats will in fact succeed in most cases. Indeed, we suggest that the
most pressing issues underlying doctrines of both constitutional amendment and replacement will
often be practical rather than theoretical: the question of under what conditions judges (or other
constitutional actors) have sufficient independence and power to make such limits stick, rather than
when they are entitled to assert them. Our key aim, therefore, is not to advocate any potential
design solution to the problem of abusive constitutionalism. It is simply to suggest that more
attention should be given to highlighting the full range of constitutional “design” solutions available
for combatting this very serious threat to democratic constitutionalism.

The remainder of the article proceeds as follows: Part I sets out the idea of abusive
constitutionalism, and notes how such practices can often include attempts at both constitutional
amendment and wholescale constitutional replacement. Normatively, this suggests that the sharp
distinction that is sometimes drawn between amendment and replacement is problematic, and that
it may be desirable to restrain replacement as well as amendment. Part II sets out a typology of
different ways in which constitutional designers or courts may attempt to limit abusive forms of
constitutional amendment, while Part III does the same for replacement. Part IV concludes by
attempting to gain some leverage on the difficult question of what practical conditions are necessary
for any form of restraint to be successful. We suggest that success is most likely where courts are
highly independent and legitimate and where a relatively organized, powerful opposition exists.

I Abusive Constitutionalism and the Link between Amendment and Replacement

The tools of constitutional amendment and replacement can play strikingly anti-democratic
roles under certain conditions. Would-be autocrats can use the tools of constitutional change to
perpetuate themselves in power and to undermine checks on their power. Amendment, for
example, may allow presidents to abolish term limits, as has occurred with several prominent
examples in modern Latin American history.7 Constitutional amendment can also be used to
undermine a checking institution like a constitutional court, by changing its selection mechanism,
jurisdiction, or other aspects of its power.8 Constitutional replacement is also used with some
regularity by would-be autocrats as a way to entrench their power. Indeed, because of its scope it
may be a particularly effective method of abusive constitutionalism.

In Venezuela, for example, President Chavez won the presidency in 1998 against a
delegitimized opposition but faced still-hostile oppositions in Congress, the Supreme Court, and local
governments. He therefore called a Constituent Assembly, an act that the Supreme Court held legal
because of a theory that the people retained original constituent power to remake their political
institutions.9 The Court in subsequent decisions attempted to use legal doctrine to shape that

7
See Tom Ginsburg, James Melton & Zachary Elkins, On the Evasion of Executive Term Limits (Univ. of Chicago
Pub. Law & Legal Theory, Working Paper No. 328, 2010).
8
A series of amendments by Fidesz in Hungary, for example, undercut the power of the well-known Hungarian
Constitutional Court even before the Constitution was replaced in 2011.
9
See Caso: Miguel Jose Monaco y otros, Jan. 19, 1999 (Supreme Court of Justice, Political Administrative
Chamber), in REVISTA DEL DERECHO PUBLICO, nos. 77-80, Jan.-Dec. 1999, at 68, 73.

3
power: it held that the “original constituent power” doctrine must reflect an authentic outpouring of
popular will, and therefore must be a participatory and representative process.10 These efforts to
shape the doctrine ultimately failed to affect the constitution-making process (a point we return to
below): Chavez in fact determined the rules for election to the Constituent Assembly, and under
those rules his candidates won about 60 percent of the votes but over 90 percent of the seats.11 The
Chavez-led Assembly then invoked the original constituent power doctrine to shut down or limit
most of the institutions opposing Chavez, including the Congress, Supreme Court, local officials, and
unions. It also drafted a new Constitution that created a much stronger presidency and, overall,
weaker checks on executive power.12

In Hungary, Fidesz won over two-thirds of seats in the Hungarian parliament despite winning
a much smaller share of votes. The party moved towards wholesale replacement of the Constitution
after adopting a series of amendments that, inter alia, reduced the power of the Constitutional
Court. Amendments taking away the Court’s jurisdiction to review fiscal laws were challenged as
unconstitutional constitutional amendments, but the Court – although finding it likely that such
limits existed – declined to find that it had the power to define them.13 By a quirk of Hungarian
constitutionalism, the Constitution under which the country had lived since the transition from
communism was considered a temporary text, and thus replacement – like amendment – could be
carried out by a two-thirds majority. The new constitutional text has created what Kim Lane
Scheppele calls a “frankenstate”:14 it creates a combination of institutions that, on aggregate, will
make Fidesz harder to dislodge and substantially reduce the horizontal checks on its power.

In Zimbabwe, President Mugabe has likewise attempted to use both constitutional

amendment and replacement as a means of entrenching his own power. Mugabe was first elected
to the presidency in 1980, when Zimbabwe gained independence, and again won government at
democratic elections in 1985.15 Thereafter, however, Mugabe began to use a series of both political
and constitutional means in order to try and retain power. In 1987, he succeeded in persuading PF-
ZAPU, the main opposition party, to merge with his own party, ZANU-PF, so that the combined party
won an overwhelming majority of seats in parliament in 1990 and 1995.16 With the support of a
ZANU-PF controlled parliament, Mugabe introduced constitutional amendments in 1984 giving the
president greater control over judicial appointments;17 amendments in 1987 creating an executive
rather than ceremonial presidency, and abolishing the office of prime minister;18 and amendments in
1989 abolishing the Senate, and creating a unicameral parliament.19 In parallel to this, Mugabe

10
See infra Part II.A (discussing key cases in detail).
11
See id.
12
See id. Note that the constitution-making process in Ecuador under President Correa in 2008 was similar in
that it aimed to delegitimize competing institutions: see Catherine M. Conaghan, supra note 3, at 46, 51–52.
13
The Court did later annul a series of “temporary provisions” added to the new Constitution, holding that
they were not, in reality, temporary provisions at all. Fidesz responded by taking away the power of the Court
to review the Constitution and its amendments.
14
=Kim Lane Scheppele, The Rule of Law and the Frankenstate: Why Governance Checklists Do Not Work, 26
GOVERNANCE 559 (2013).
15
Sachikonye, supra note 3, at 174 (2004); Sithole, supra note 3, at160–61.
16
Sachikonye, supra note 3, at 174; Sithole, supra note 3, at 161.
17
S. AFR. CONST., Amendment Act of 1984.
18
S. AFR. CONST., Amendment Act of 1987.
19
S. AFR. CONST., Fourth Amendment Act of 1989.

4
sought to shore up the dominance of ZANU-PF via a system of economic patronage involving the
redistribution of formerly white-owned land, largely to ZANU-PF supporters. To allow this, Mugabe
again also employed constitutional mechanisms: in 1990, he obtained parliament’s support for
amendments to the Constitution abolishing the “willing buyer, willing seller” model of land reform,
in favour of a standard of “fair compensation” for any taking of property.20 In 2000, Mugabe again
attempted to use constitutional procedures to consolidate his hold on power. Following calls for
democratic constitutional reform, Mugabe unilaterally inserted changes to a proposed new
constitutional draft, requiring compulsory military service, prohibiting same-sex marriage, and
providing that the government had “no obligation to pay compensation for agricultural land
compulsorily acquired for resettlement” and that it was the sole responsibility of the UK to pay any
such compensation.21 Had this new Constitution in fact been ratified by the voters in February 2000,
it would thus have significantly increased the ability of the ZANU-PF party to use land, military force
and economic patronage, as a means of retaining access to political power.

Thus, in the hands of autocratic actors, replacement, like amendment, is a potential tool for
democratic abuse. The two processes are also closely connected at the level of political incentives. If
a constitution, for instance, makes processes of constitutional amendment particularly difficult,
constitutional replacement becomes a more attractive option to political leaders seeking to achieve
abusive constitutional change; whereas if a constitution restrains replacement, but makes
amendment relatively easy, this will create additional incentives for reliance on a process of
constitutional amendment. The French constitutional experience is a good example: the demanding
requirements for constitutional amendment under the 1946 French Constitution effectively
prevented the use of the amendment process to address government instability under the Fourth
Republic.22 This created a strong incentive for DeGaulle to turn to constitutional replacement as a
strategy upon gaining power in 1958. Similarly, the limits on formal constitutional amendment under
the 1958 Constitution gave DeGaulle an incentive to continue to rely on other processes – involving
an exercise of direct democracy or “constituent power” – to achieve constitutional change.23 In
other countries, such as Zimbabwe, the exact opposite dynamic can be observed: constitutional
replacement ultimately proved too difficult for Mugabe to achieve without multi-party support, but
Mugabe had a long history of successfully relying on constitutional amendment to entrench his hold
on power.24 How constitutional law structures or constrains one process, therefore, will inevitably
affect or regulate indirectly the use of the other mode of change. Yet in most works of constitutional
theory, they are treated as fundamentally different creatures.

Modern constitutional theorists admit the possibility and desirability of strict limits on
constitutional amendment. Even substantive limits, like the unconstitutional constitutional
amendment doctrine, have gained some acceptance. Theories of the constituent power justify these
restrictions by noting that amendment is exercised by political representatives acting as delegates
for the people. The scope of the delegation is limited, and as with any principle–agent scenario, it is

20
Sachikonye, supra note 3, at 6; Norma Kriger, Liberation from Constitutional Constraints: Land Reform in
Zimbabwe, S.A.I.S. REV., Summer–Fall 2007, at 67.
21
John Hatchard, Some Lessons on Constitution-Making from Zimbabwe, 45 J. AFRICAN L. 210, 213; Kriger, supra
note 20, at 70.
22
SOPHIE BOYRON, THE CONSTITUTION OF FRANCE: A CONTEXTUAL ANALYSIS 168, 237–38 (2012).
23
1958 CONST. 11. See discussion in BOYRON, supra note 22, at 238.
24
See supra text accompanying notes 15–21.

5
possible that the delegates will exceed the scope of the permissible delegation for their own ends.25
Limits on amendment are therefore potentially pro-democratic because they preserve space for
certain fundamental re-workings of political institutions to be made by the people themselves. The
unconstitutional constitutional amendment doctrine is thought to create a severe form of the
counter-majoritarian difficulty, but this doctrine might be seen as justified if it prevents democratic
erosion.

In contrast, constitutional replacement is usually seen as being an act by “the people”

outside of existing legal or constitutional rules. The theory of constituent power views these
moments as ones in which “the people” act directly, rather than through their delegates, to make
fundamental choices about the polity. Moreover, theorists often express the view that constitution-
making moments are brought on by popular mobilizations that are so overwhelming as to overcome
any attempt at legal control from the existing order. Constraints on constitution-making are thus
seen as both illogical and futile. The classical understanding of constituent power, developed by
scholars such as Emanuel Sieyès and Carl Schmitt, is that it is something quite distinct and prior to
the “constituted power” – i.e., the kinds of bodies authorized by a constitution to create positive
sources of constitutional law. Constituent power, Sieyès and Schmitt argued, represents the ultimate
source of authority for a constitution; and as such, cannot itself be constrained by the constitution,
or any other source of positive law. The nation, Sieyès argued, “is prior to everything. It is the source
of everything. Its will is always legal; indeed it is the law.”26 The constitution, Schmitt argued, is
“valid by virtue of the existing political will of that which establishes it”.27 It is a logical contradiction,
according to Schmitt, for law to purport to constrain the exercise of that form of political will, or
constituent power: “every types of legal norm, even constitutional law”, he argued, “presupposes
that such a will already exists”.28

The fact that abusive constitutionalism often occurs through replacement problematizes this
classical dichotomy between amendment and replacement. Either process can be manipulated in
order to serve the agendas of authoritarian actors and parties. The root problem is that “the people”
is a legal fiction, and the claim to be acting in the name of “the people” can be appropriated. In most
settings, we are sceptical of the degree to which any real-world process of constitutional
replacement will involve an undisputed exercise of constituent power. It will also almost always be
open to dispute, or argument, as to whether a set of particular elected leaders, or popular political
leaders, can legitimately claim to speak for a majority of citizens, or the people as a whole.

Chaihark Hahm and Sung Ho Kim have made similar arguments about the minimum degree
of “social capital” necessary for an exercise of constituent power to be possible: there is both a
minimum level of “mutual trust”, and form of “functioning administrative apparatus and police
power”, necessary to facilitate a process of democratic constitutional bargaining.29 Where a court
seeks to enforce limits on the process of constitutional replacement that are designed to preserve

25
On the principal–agent idea in a constitutional context, see, e.g., Tom Ginsburg & Eric A. Posner,
Subconstitutionalism, 62 STAN. L. REV. 1583 (2011); Mila Versteeg & Emily Zackin, American Constitutional
Exceptionalism Revisited, 81 U. CHI. L. REV. 1641 (2014).
26
E. J. SIEYÉS, WHAT IS THE THIRD ESTATE? 124 (1963).
27
CARL SCHMITT, CONSTITUTIONAL THEORY (2008), 76.
28
Id.
29
Chaihark Hahm & Sung Ho Kim, To Make “We the People”: Constitutional Founding in Postwar Japan and
South Korea, 8 INT’L J. CONST. L. 800, 811 (2010).

6
that minimum level of trust or state capacity, they may be acting in a way that is logically consistent
with the distinction between constituted and constituent power. Similarly, Richard Stacey argues
that Schmitt can be read “against himself” to support the idea of courts enforcing certain minimum
substantive limits on constitutional change, where those limits pose a threat to basic commitments
to generality and rationality implicit in the notion of law itself.30

Mainstream theory also tends to suggest that constraints on constitution-making (even if

desirable) would be futile because constitution-making is done by uncontrollable actors or
movements. Again, the realities of abusive constitutionalism cast doubt on this view. Abusive
amendment, like replacement, tends to occur during periods of high political turmoil; constraint is
plausibly difficult but not impossible during both types of constitutional change. Under certain
conditions, restraint on constitutional change can act as a “speed bump” in order to slow abusive
processes, and the time gained may be critical in allowing opposition actors to organize and prevent
the anti-democratic change.

In Zimbabwe, for instance, the popular rejection of Mugabe’s attempt at abusive

constitutional replacement helped give the opposition a key window of extra time in which to
organize against Mugabe, and the ZANU-PF, and their efforts at abusive constitutional change. In
September 1999, five months before the constitutional referendum, members of the Zimbabwe
Congress of Trade Unions formed a new political party, the Movement for Democratic Change
(MDC), designed to challenge the ZANU-PF at upcoming parliamentary elections.31 However, at the
time of the referendum itself, neither the MDC nor any other opposition party had any significant
representation in Parliament. The defeat of the referendum by the voters, in February 2000, thus
not only helped deliver the MDC an important early political win – but a key window of time in which
to attempt to increase its power in parliament, and therefore its ability to block future attempts at
abusive constitutional change. This is also exactly what ultimately happened in the June 2000
parliamentary elections: ZANU-PF won 48.6% of the vote and 62 seats in Parliament, in these
elections, and the MDC won 47% of the vote and 57 seats.32 While the MDC could do nothing to
prevent a lame-duck Parliament from passing amendments to the property clause in April 2000,33
from June onwards it thus gained clear power to block attempts by ZANU-PF to pass constitutional
amendments unilaterally, without consulting civil society or the opposition.34 The MDC also steadily
gained support in presidential elections in 2002 and 2008, so that by 2008, the MDC candidate,
Morgan Tsvangarai, won the highest share of votes in the first round of voting.35 He withdrew from
the election after sustained attacks against MDC members, but the MDC won a clear majority of

30
Richard Stacey, Constituent Power and Carl Schmitt’s Theory of Constitution in Kenya’s Constitution-Making
Process, 9 INT’L J. CONST. L. 587 (2011).
31
Sithole, supra note 3, at 164
32
KÅRE VOLLAN, THE CONSTITUTIONAL HISTORY AND THE 2013 REFERENDUM OF ZIMBABWE: A NORDEM SPECIAL REPORT 11, 22
(2013).
33
On the impact of these changes, and their potentially abusive effect, see, e.g., Simon Coldham, Land
Acquisition Amendment Act, 2000 (Zimbabwe), 45 J. AFR. L. 227 (2001); Kriger, supra note 20.
34
Hatchard, supra note 21, at 215. It temporarily regained such a majority at the 2005 parliamentary elections,
and used that new super-majority power to reintroduce the Senate: see VOLLAN, supra note 32, at 24.
35
VOLLAN, supra note 32, at 256.

7
seats in Parliament, so that eventually he became Prime Minister under a South African-mediated
power-sharing arrangement, or “government of national unity”.36

Had the High Court of Zimbabwe upheld, rather than rejected, the procedural challenge
brought to the proposed new Constitution in 1999, one could thus imagine that such a decision
could have served as a similar “speed bump” on unilateral attempts at constitutional change by
Mugabe.37 To succeed in this context, all such a decision needed to do was slow down Mugabe’s
attempt at change, until after the June 2000 parliamentary elections.

By problematizing the sharp distinction between amendment and replacement, we

emphasize that we are not making a clear normative or democratic case in favour of restraining
constitutional replacement. Nor are we arguing that in practical terms those limits will hold in all or
most cases. We are merely arguing that it is a mistake to think that limits on constitutional
replacement are either per se normatively unjustifiable or will inevitably fail. The possible
approaches explored below demonstrate a range of relationships between normative and pragmatic
goals, and of course the desirability of any given approach will vary based on political context.

II. Constraining Constitutional Amendment: A Typology

Scholars now regularly discuss a wide range of tools that are available for constraining
constitutional amendment. We develop a categorization here that we think is helpful for
distinguishing different kinds of approaches. At the outset, we distinguish two different dimensions
on which restrictions may vary. Procedural restrictions focus on determining the rules
(supermajorities, temporal restrictions, etc.) that an amendment must clear in order to be valid;
substantive restrictions instead define a range of matters as being outside of the amendment power,
regardless of the procedure that is followed in undertaking the amendment. We further divide
restrictions between ex ante approaches, which are imposed by the constitutional text before the
fact, and ex post approaches, which are imposed by judges (or potentially other actors) after the
fact.

We recognize that neither distinction is ironclad. The substantive–procedural line blurs, for
example, when courts hold that a given substantive change is unconstitutional unless a more
demanding procedure is used.38 Similarly, the ex ante/ex post line is fuzzy because procedural or
substantive rules in constitutional texts require interpretation by judges after the fact, and ex post
doctrines like the unconstitutional constitutional amendment doctrine are usually grounded by
judges in some broad provision or structure of the existing constitutional texts.39 Still, we think the
categorization is useful for thinking through the range of approaches that has now been recognized
for the control of constitutional amendment.

36
VOLLAN, supra note 32, at 27–29; Timothy D. Sisk & Christoph Stefes, Power Sharing as an Interim Step in
Peace Building: Lessons from South Africa, in SUSTAINABLE PEACE: POWER AND DEMOCRACY AFTER CIVIL WARS 293
(Philip G. Roeder & Donald Rothchild eds., 2005); Marisa Traniello, Power-Sharing: Lessons from South Africa
and Rwanda, INT’L PUB. POL’Y REV., Mar. 2007, at 28.
37
For details of this decision, see Hatchard, supra note 21, at 214.
38
See Vicki Jackson, Unconstitutional Constitutional Amendments: A Window into Constitutional Theory and
Transnational Constitutionalism, in DEMOKRATIE-PERSPEKTIVEN: FESTSCHRIFT FÜR BRUN-OTTO BRYDE 47, 58–60 (2013).
39
See infra Part II.B.

8
A. Procedure vs. Substance

The most obvious form of review of constitutional amendment is a textual provision

requiring that proposals go through a certain process in order to be valid. Constitutional theorists
and designers have imagined a range of different kinds of procedural restrictions in constitutions
around the world. The most common is a requirement of supermajority vote in a parliament, but
others include temporal restrictions (or requirements for multiple votes) as well as requirements for
referenda or other devices. Other variants on procedural constraint involve the “tiering” of
constitutional amendment procedures, or creation of different tracks for constitutional amendment
based on the issue at stake. Many modern constitutional orders require higher super-majorities or
other more onerous requirements in order to amend key principles of the constitutional order.40
Others lay out a number of different procedures, and require relatively onerous procedures to carry
out certain forms of changes.41 While one could question the justiciability of even these kinds of
restrictions, it is now well established in most systems that courts have an ability and obligation to
police these sorts of boundaries.42

More interesting is the growing recognition of substantive restraints on constitutional

amendment. In some sense, a substantive protection of constitutional principles or provisions is an
extreme form of this kind of tiering, which makes some kinds of constitutional amendment
impossible regardless of procedure.43 Both the phenomenon of eternity clauses – where
constitutional texts explicitly say that certain constitutional provisions or principles may not be
amended under any circumstances44 – and the doctrine of unconstitutional constitutional
amendments – where judges make the same determination ex post – are examples of this
phenomenon. As Yaniv Roznai points out, the latter doctrine has been one of the more successful
exports in recent comparative constitutional law.45

Moreover, the growing recognition of the importance of substantive controls on

constitutional change appears to be a product of the weaknesses of purely procedural control. In
particular, procedural rules are very sensitive to political conditions. A two-thirds supermajority
requirement, which may seem very demanding in the context of a competitive two-party or multi-
party democracy, may not be demanding at all in a dominant party system or even after one party
(as in Hungary) happens to win a high percentage of seats with a bare majority of votes.46

40
See, e.g., S. AFR. CONST. 1996, §74 (requiring higher super-majorities and more demanding procedures for
changes to certain key parts of the constitution).
41
See, e.g., CONSTITUTION OF ECUADOR, arts. 441-42 (2008) (distinguishing amendment from partial revision, and
creating different rules for each procedure).
42
See CONSTITUTION OF ECUADOR, art. 444 (2008) (“The Constitutional Court shall rule which of the procedures
provided for in the present chapter pertains to each case.”).
43
See Richard Albert, Constitutional Handcuffs, 42 ARIZ. ST. L.J. 663, 708–11 (2010) (noting that onerous tiers
will basically mimic eternity clauses).
44
See, e.g., CONSTITUTION OF GERMANY [GG], art. 79, cl. 3 (making amendment to certain key provisions like the
principle of human dignity “inadmissible”).
45
See Yaniv Roznai, Unconstitutional Constitutional Amendments – the Migration and Success of a
Constitutional Idea, 61 AM. J. COMP. L. 657, 660 (2013) (“It appears that the global trend is moving towards
accepting the idea of limitations--explicit or implicit--on constitutional amendment power.”).
46
See supra text accompanying notes 13–14.

9
 An example of the utility of substantive constraints on constitutional change is the
Colombian Constitutional Court’s famous decision denying Alvaro Uribe a third consecutive term in
office.47 Colombia’s political system since the drafting of the 1991 Constitution had been extremely
fragmented, thus denying any one political force an easy ability to meet Colombia’s constitutional
amendment threshold.48 Uribe, however, gained a high level of popularity; he thus consolidated a
number of different political forces and established firm control over the Congress. He managed to
pass a constitutional amendment in 2005 allowing Colombian presidents to run for two consecutive
terms in office; while finishing his second term of office in 2009, his allies forced through a
referendum that would have allowed Uribe to run for three consecutive terms. In each case, Uribe
was aided by the relatively low threshold for amendment in Colombia – procedurally, the
Constitution could be changed via a vote of a relative majority (a majority of all those voting) in one
legislative session, followed by an absolute majority (a majority of all members of the legislature) in
a second session.49

Both of these amendments were challenged in front of the Colombian Constitutional Court
for both procedural reasons and as unconstitutional constitutional amendments. The Court upheld
the first change,50 but struck down the second on both procedural and substantive grounds.
Substantively, the Court held that a third consecutive term would in fact be a substitution of the
Constitution because of the damage it would do to the system of checks and balances created by the
Constitution, because of its uniqueness in Colombian history, and because it would be very unusual
by regional and international standards.51 The substantive doctrine of unconstitutional constitutional
amendment allowed the Court to protect the democratic order in a political context in which the
procedural amendment rules in the Colombian Constitution provided little protection.

B. Ex Ante v. Ex Post

Restrictions on constitutional amendment can further be subdivided into ex ante and ex post
restraints: those that are textual versus those that are judge made. Procedural restrictions on
constitutional amendment are usually assumed to be ex ante, although in fact ex post procedural
restrictions on amendment do exist (and may not even be uncommon).52 In the US, one possible
example is the suggestion by the Supreme Court in early cases that it might be willing to impose
some time-limit on the ratification of a proposed constitutional amendment under Article V of the
US Constitution. There was potentially an “implication” to be drawn from the terms of Article V, the
Court suggested in Dillon v. Gloss, that ratification must be “sufficiently contemporaneous … to
reflect the will of the people in all sections at relatively the same period”.53 But in later cases, such as

47
See Decision C-141 of 2010, Feb. 26, 2010, available at www.corteconstitucional.gov.co/relatoria/2010/C-
141-10.htm.
48
See Eduardo Pizarro Leongomez, Giants with Feet of Clay: Political Parties in Colombia, in THE CRISIS OF
DEMOCRATIC REPRESENTATION IN THE ANDES 78, 78–79 (Scott Mainwaring et al., eds., 2006) (noting the process of
fragmentation that went on within the Colombian party system after 1991).
49
See CONST. COL., art. 375.
50
See Decision C-1040 of 2005, Oct. 19, 2005, available at www.corteconstitucional.gov.co/relatoria/2005/c-
1040-05.htm.
51
See Decision C-141 of 2010, §§ V.6.3.5.1.1.-1.3.
52
Take, for example, courts that impose requirements of readability, neutrality, etc. on constitutional
referenda. See, e.g., C-551/03 (striking down some of Alvaro Uribe’s constitutional referendum questions on
procedural grounds).
53
256 U.S. 368, 375 (1921).

10
Coleman v. Miller,54 the Court retreated from that position, and held that the time-frame for
ratification of an amendment was a political or non-justiciable question. Hence, there have
ultimately been no ex post procedural limitations on the passage of an amendment under the US
Constitution, so that one amendment (the 27th Amendment) was passed after a 202 year ratification
period.55 The presumed paucity of judge-made procedural restraints on constitutional amendment
may have something to do with the powerful legitimacy challenges faced by this kind of review.

There is a much more important debate between ex ante and ex post methods of
substantive review: tiering or eternity clauses versus the unconstitutional constitutional amendment
doctrine. The big advantage of ex ante approaches is that they enjoy a greater legitimacy. While
would-be authoritarian actors may argue that textual eternity clauses are undemocratic and should
not be binding,56 they will probably have a harder time attacking explicit textual clauses than they
would an amorphous judge-made doctrine. Enforcing an explicit eternity clause is likely also easier
for a weak or low capacity court than relying on a judge-made set of fundamental principles.57

The advantage of the unconstitutional constitutional amendments doctrine is its greater

flexibility. Constitutional orders rarely seem to be optimally designed ex ante from the standpoint of
democratic protection: many (like Colombia) are not tiered at all, others (like South Africa) are tiered
but do not protect those institutions that would actually be vulnerable to attack.58 It may be very
difficult to design a set of constitutional tiers so as to provide adequate protection for constitutional
orders. This is especially true because there are often a number of ways for would-be authoritarians
to achieve their goals. Courts, for example, can be attacked in many different ways, and a political
actor unable to attack a court may be able to achieve the same goals through some other route.59 As
we have noted elsewhere, the doctrine of unconstitutional constitutional amendment potentially
allows courts to deploy a flexible doctrine that permits most amendments but strikes down those
posing a particularly significant threat, under specific circumstances, to a country’s democratic
development.60

We emphasize finally that the line between ex ante and ex post review is inherently fuzzy
because all constitutional texts require acts of interpretation. There will almost always be a
significant degree of interpretive judgment – or constitutional “design” – by courts in the

54
307 U.S. 433 (1939).
55
Richard B. Bernstein, The Sleeper Wakes: The History and Legacy of the Twenty-Seventh Amendment, 61
FORDHAM L. REV. 497 (1992); Ruth Ann Strickland, The Twenty-Seventh Amendment and Constitutional Change
by Stealth, 26 POL. SCI. & POL. 716 (1993).
56
See, e.g., Andrew Friedman, Dead Hand Constitutionalism: The Danger of Eternity Clauses in New
Democracies, 9 MEX. L. REV. 77 (2011).
57
Much depends on the specificity of drafting. In Ecuador, for example, the Constitutional Court recently had
to interpret quite general provisions establishing different procedures for constitutional change, in order to
determine which path a proposal allowing the indefinite reelection of President Correa should follow. The
Court ultimately declined to hold that the more demanding route needed to be used. See Asamblea tramitara
la reeleccion indefinida en Ecuador, LA HORA, Oct. 31, 2014, available at
http://www.lahora.com.ec/index.php/noticias/show/1101745034#.VPibWSyHxyF.
58
See S. AFR. CONST. 1996, § 74, cl. 1 (requiring a particularly demanding procedure for attempts to amend the
basic principles of the constitution, laid out in the first few articles).
59
See, e.g., Bankuti et al., supra note 3, at 138 (laying out a number of different ways in which the Hungarian
Constitutional Court was attacked, first by undermining its jurisdiction and then through packing).
60
See Rosalind Dixon & David Landau, Transnational Constitutionalism and a Limited Doctrine of
Unconstitutional Constitutional Amendment, 13 INT’L J. CONST L. (forthcoming 2015).

11
enforcement of ex ante forms of limitation. Almost all constitutional language contains some form of
gap, or ambiguity, which then calls for a judicial elaboration, or gap-filling.61 This is true even for
constitutional language that on its face appears quite specific or detailed, as well as for language
that is more general or open-ended on its face.62 For any ex ante limitation on constitutional change
to be effective, it will also often need to be quite broad and general in terms. Otherwise, the danger
is that by the clever “splitting” of amendments, would-be-autocrats may be able quite readily to
evade more specific, rule-like limits on processes of constitutional change.63 Whether a court is
purporting to enforce a purely ex ante limitation on constitutional change, or rather implying some
ex post form of limitation, therefore, the court will almost always be exercising a significant degree
of interpretive judgment.64

III. Constraining Constitutional Replacement

While the literature now recognizes a range of options for controlling constitutional
amendment, it tends to view constitutional replacement as a fundamentally different problem. We
think, nonetheless, that the same range of potential options exists, at least in theory. In fact, most of
the options we discuss below have actually been used in practice. The real question is when these
restraints are effective under realistic political conditions. The case studies here, while giving only
tentative answers on that question, suggest that success is more likely where the court itself enjoys
more legitimacy and independence and where the opposition is more powerful and organized.

A. Ex Post Procedural Restraint: Defining the Constituent Power

Some courts and commentators have suggested that the judiciary can limit attempts at abusive
constitutional replacement by defining the meaning of a proper exercise of the constituent power.65
The theory is that constitution-making is an exercise of popular will, and therefore an attempt by a
leader to take on this power improperly is itself unconstitutional. Judicial decisions may attempt to

61
Rosalind Dixon, Partial Constitutional Codes (Univ. N.S.W. Law, Research Paper No. 2014-37, 2014); Rosalind
Dixon, Constitutional Redundancy (2014) (unpublished manuscript) (on file with author).
62
See supra note 61.
63
See Dixon & Landau, supra note 60.
64
The South African case United Democratic Movement v. President of the Republic of South Africa (No 2) 2003
(1) SA 495 (CC) is an example. The Constitutional Court was asked to consider the validity of amendments to
the Constitution that allowed members of Parliament to retain their seat after “defecting” from their previous
party, or changing their party affiliation. The argument by those challenging the relevant amendments was
that they violated important ex ante procedural limitations on the power of amendment, which meant that
any change to the founding values in s 1(b) of the Constitution required the support of 75 percent (rather than
two-thirds) of the National Assembly, and six of the provinces in the National Council of Provinces. The
relevant values were alleged to be those of “universal adult suffrage, a national common voters’ roll, regular
elections and a multi-party system of democratic government.” See at para. 15–17 (citing Mahomed DP in
Premier of KwaZulu-Natal v President of the Republic of South Africa 1996 (1) SA 769 at para. 47, 49 (CC)). As
the Court itself acknowledged, these were all questions that involved the making of significant evaluative –
and contested – judgments about the minimum requirements of a system of multi-party democracy.
65
See, e.g., Kim Lane Scheppele, Unconstitutional Constituent Power (Feb. 2013) (unpublished manuscript, on
file with author), available at
https://www.sas.upenn.edu/dcc/sites/www.sas.upenn.edu.dcc/files/uploads/Scheppele_unconstitutional%20
constituent%20power.pdf (questioning the legality of a constitution-making process where the “government
brings into being a new constitution without establishing that the will of the political community is unified on
the need for and shape of this new constitution”).

12
separate proper versus improper invocations of the constituent power via judicial decisions during
the constitution-making process.

Venezuela (1999) is the most prominent recent example of a court attempting to impose
restrictions on constitution-makers based on this theory. This effort at judicial control failed, perhaps
for telling reasons. In a key decision, the Court struck down a referendum question that would have
allowed Chavez to unilaterally write the electoral rules for the Constituent Assembly after receiving
approval from the voters to do so.66 The Court held that the constitution-making must be an exercise
in “true popular will” and must enjoy the “full trust of the collective”; this question violated that
principle.67 The Court located the source of these restraints in implicit principles, or the spirit, of the
existing constitutional text.68 In subsequent decisions, the Court struck down attempts by the newly
written electoral rules and by Chavez to define the Assembly as existing wholly outside of the legal
system.69

These decisions did not exercise a meaningful control on the constitution-making process
initiated by Chavez. The electoral law decision forced Chavez to write the electoral rules ex ante and
have them approved by voters in the referendum.70 But it is doubtful whether voters understood the
effects of these rules, which permitted Chavez to dominate the Assembly with 93 percent of seats
despite only winning about 65 percent of votes.71 The poorly organized opposition won 5 percent of
seats despite garnering 34 percent of the votes.72 The decisions defining the Assembly as inside
rather than outside existing legal orders did not stop the Assembly from closing down or removing
most other institutions of state (which were still controlled by the opposition). Indeed, the Court
acquiesced in these moves. The key decision here was the one challenging the Assembly’s shutting
down most of Congress and limiting most of its powers.73 In its decision upholding the Assembly’s
decree, the Court abandoned any attempt to control the Assembly. It stated that the “convoking of
the Constituent Assembly was preceded by a very broad consensus, in whose formation intervened

66
See Caso: Gerardo Blyde, contra la Resolucion N. 990217-32 del Consejo Nacional Electoral (17-2-99), Mar
18, 1999 (Supreme Court of Justice, Political-Administrative Chamber), in REVISTA DEL DERECHO PUBLICO, nos. 77-
80, Jan.-Dec. 1999, at 73, 78 (reprinting the questions in the referendum).
67
See id. at 80.
68
See id.
69
See Caso Gerardo Blyde v. Consejo Supremo Electoral, Apr. 13, 1999 (Supreme Court of Justice, Political
Administrative Chamber), in REVISTA DEL DERECHO PUBLICO, nos. 77-80, Jan.-Dec. 1999, at 85, 89-90 (reformulating
a provision of the electoral rules to strike a phrase defining the Assembly as “an original power based in
popular sovereignty”); Caso Alberto Franceschi y Otros, July 21, 1999 (Supreme Court of Justice, Political
Administrative Chamber), in REVISTA DEL DERECHO PUBLICO, nos. 77-80, Jan.-Dec. 1999, at 104, 110 (reiterating the
principle that the Assembly was not outside of the legal framework following contrary statements by Chavez).
70
See id. at 87 (reprinting the electoral rules under which the Constituent Assembly was chosen).
71
See Renata Segura & Ana Maria Bejarano, Ni una asamblea mas sin nosotros! Exclusion, Inclusion, and the
Politics of Constitution-Making in the Andes, 11 CONSTELLATIONS 217, 230 (2004).
72
See id.
73
See Caso: Vicepresidente del Congreso de la República vs Asamblea (decreto 25-8-99), Oct. 14, 1999
(Supreme Court of Justice, Plenary Chamber), REVISTA DEL DERECHO PUBLICO, nos. 77–80, Jan.-Dec. 1999, at
111, 115-16 (reviewing a decree of the Constituent Assembly that reduced the Congress to a “delegated
commission” and sharply reduced the topics on which it could legislate).

13
the President of the Republic and the principal political forces, pushed by the initiatives of civil
society.”74 Shortly thereafter, the Court itself would be disbanded by the Assembly.75

The major strength of allowing courts to define the constituent power is that it is the approach
that is most clearly consonant with dominant theoretical conceptions. Even those who believe in a
sharp distinction between constitutional amendment and replacement might endorse the idea that
the constituent power is only exercised properly if certain conditions are met. A doctrine that can
differentiate authentic rather than fake exercises of the popular will thus has intuitive appeal.
Whether courts rather than political actors should be the ones to define and enforce those limits is
of course a more difficult question.

A more practical objection may at any rate swamp these theoretical questions: asking courts to
define and enforce conceptions of when the constituent power is properly being exercised puts
those courts in extremely difficult positions. The most likely reason for the pattern of decision-
making exhibited by the Venezuelan Court, for instance, is that it felt that it could only afford to
impose symbolic rather than real limits on constitution-making in order to avoid retaliation. (The
irony is that the Court was eventually shut down anyway.) In Zimbabwe, similar concerns likely
informed the 1999 decision by the High Court to reject a challenge to Mugabe’s unilateral changes
to the proposed constitutional draft: such a challenge both lacked any clear formal legal basis and
was very likely to provoke retaliation from Mugabe.76 Perhaps courts in both cases could have done
more by imposing sharper limits earlier in the process.77 But the general point is that a doctrine
attempting to limit purported exercises of constituent power puts courts in positions even more
difficult than the unconstitutional constitutional amendment doctrine. That is, a court is attempting
to impose limits with little or no textual basis, during periods of high political tension, and when
existing institutions are usually delegitimized. In Venezuela, of course, the Court’s position was made
even more untenable by its own institutional weakness and by the fact that the opposition was weak
and poorly organized.

All of this does not mean that the constituent power route is necessarily a dead end. Courts,
scholars, and institutions interested in developing this route should consider more engagement with
transnational norms. In prior work on the unconstitutional constitutional amendments doctrine, we
have argued that a major use of transnational engagement is to limit “overuse” of these powerful
judicial tools by acting as a check on initial judicial instincts that a given change actually is
antidemocratic.78 Transnational anchoring may play that role here as well: courts attempting to limit
procedures that are actually accepted in constitution-making around the world might hesitate
before doing so. By considering whether the particular constitutional arrangements under attack are
present in a large number of other constitutional democracies, a court may gain a clearer sense of

74
Id. at 119.
75
See BREWER CARIAS, supra note 3, at59 (2010).
76
See, e.g., Hatchard, supra note 21, at 214.
77
For example, the Venezuelan Court rejected as inadmissable a challenge to the electoral rules themselves,
once they had been approved by voters in a referendum. See Caso: Cecilia Maria Colon de Gonzalez contra la
Base Tercera del Proceso Electoral para miembros de la Asamblea Nacional Constituyente contenida en la
Resolucion N. 990323-70 dictada por el Consejo Supremo Electoral (23-03-99), June 3, 1999 (Supreme Court of
Justice, Political-Administrative Chamber), in REVISTA DEL DERECHO PUBLICO, nos. 77–80, Jan.-Dec. 1999, at
90, 93.
78
Dixon & Landau, supra note 60.

14
whether such arrangements are in fact fundamental to democracy. But a more important use of
transnational norms in this context may be in providing courts with the needed support to construct
a doctrine of unconstitutional constituent power. Some best practices exist, but they are often
defined at a very broad level: i.e., the encouragement of popular participation.79 International
institutions, scholars, and courts might do more to define the acceptable bounds of constitution-
making processes.80 We return to this point below as a way to bolster substantive restraints on
constitution-making.81

B. Ex Ante Procedural Restraint: Replacement Clauses

A more promising route may be ex ante controls on replacement included in existing

constitutional texts. Most constitutions say nothing about their own demise or replacement.82 Yet
some do attempt to restrict the procedure by which any new constitutional text would be adopted.
The under-utilization of constitutional replacement clauses is one of the more puzzling features of
current constitutional design, since it is not implausible to think that existing texts could shape the
procedures by which new constitutions would be adopted.

Bolivia offers a recent example of a difficult constitution-making processes mediated by such

a replacement clause. The existing Constitution was amended a few years before the most recent
round of constitution-making to require a two-thirds vote of the Congress in order for a constituent
assembly to go forward.83 Both President Morales and the opposition (which was regionally
concentrated in the resource-rich east of the country) were interested in replacing the Constitution,
although they had very different goals for the final text. Morales won election as an outsider to the
existing party system on a platform that emphasized the radical reworking of the state. An important
part of his coalition were indigenous groups who had faced historical repression and marginalization.
Morales thus sought to ground Bolivia as a plurinational state as well as to increase executive
power.84 The opposition, in contrast, sought greatly increased regional autonomy as well as greater
control over their own natural resources.85

Relying on the two-thirds clause, the opposition and Morales’s forces achieved a negotiated
solution to call a Constituent Assembly.86 Under the negotiated rules, the Congress would authorize
a constituent assembly, but subject to a detailed set of rules. Those rules included a relatively even-

79
See Thomas M. Franck & Arun K. Thiruvengadam, Norms of International Law Relating to the Constitution-
Making Process, in FRAMING THE STATE IN TIMES OF TRANSITION: CASE STUDIES IN CONSTITUTION MAKING 3, 14 (Laurel E.
Miller, ed., 2010) (finding that there is “no firm evidence of [international law] rules applicable to the process
of constitution making,” but there is “a general requirement of public participation in governance”).
80
We recognize that the invocation of transnational or international precedent can sometimes be harmful
rather than helpful. In the Venezuelan context, for example, a form of anti-Western, anti- imperialist rhetoric
was a key part of the attempt by Chavez to achieve constitutional change. Attempts to limit such change,
therefore, might be less, rather than more, likely to succeed if they were linked to truly international
constitutional standards.
81
See supra Part III.C.
82
See David Landau, Abusive Constitutionalism, 47 U.C. DAVIS L. REV. 189, 242 (2013) (noting that “relatively
few” constitutions contain replacement clauses).
83
See Ley No. 2631, Feb. 20, 2004, available at http://www.lexivox.org/norms/BO-L-2631.pdf.
84
See Eduardo A. Gamarra, Bolivia: Evo Morales and Democracy, in CONSTRUCTING DEMOCRATIC GOVERNANCE IN
LATIN AMERICA 124, 129 (Jorge I. Dominguez & Michael Shifter, eds., 3d ed. 2008).
85
See id. at 138.
86
See Ley No. 3364, Mar. 6, 2006, available at http://www.lexivox.org/norms/BO-L-3364.xhtml.

15
handed set of electoral rules as well as a requirement that the text be approved by a two-thirds
majority of the assembly.87 Further, a subsequent reform clarified that unless all articles of the draft
were approved by two-thirds of the Assembly, the text could only be approved after majority voter
approval in a referendum convoked by a two-thirds vote of the Congress.88 Together these rules
gave the opposition significant power over the constitutional text.

The resulting process was a messy one, and the rules proved unstable from the start of the
process.89 Morales’s supporters won a majority of seats, but lacked two-thirds of the chamber.90
Supporters of Morales nonetheless stated that the assembly had “original constituent power” and
thus could adopt any rules it wanted, without worrying about the electoral law under which it had
been convoked.91 The threat here was that the assembly, by majority action, could shed the two-
thirds requirement and other restrictions placed on its work. There were also more practical debates
about what the two-thirds requirement would mean, and in particular whether it applied to all votes
on individual articles or only the final vote on the overall text.92 After a tumultuous process drawn
out from 2006 to 2008, the Assembly broke down over a peripheral issue (the location of the capital)
and a rump assembly approved the text without the participation of the opposition.93

The requirement for a congressional law approving the referendum, however, gave the
opposition some continued power. Although Morales’s forces attempted to pass a referendum
through Congress by having social movements block the opposition’s access to the floor, the
Electoral Court struck down this effort on rather vague grounds and Morales then negotiated a new
constitutional text with the opposition.94 Based on this modified text, which made some concessions
on regional autonomy and state control over the economy, the opposition agreed to approve a
referendum, and the referendum passed with 61 percent support.95

The Bolivian example thus suggests that replacement clauses might exert an influence on
constitution-making processes under fairly specific conditions. Such clauses have the same
advantage as ex ante approaches to constraining amendment: (relative) clarity. This makes it
relatively costly for dominant actors to ignore the rules. Further, these kinds of rules may serve as
focal points for the support of non-judicial actors.96 In the Bolivian case, the Electoral Court played a
key role in striking down Morales’s attempt to ram through a referendum, but most of the

87
See id. art. 14 (system of electoral rules); art. 25 (two-thirds approval).
88
This change was made after the Assembly exceeded its initial one-year time limit; the law expanded the time
limit but also imposed additional regulations. See Ley No. 3728, Aug. 4, 2007, arts. 1, 4, available at
http://www.lexivox.org/norms/BO-L-3728.xhtml.
89
See Fabrice Lehoucq, Bolivia’s Constitutional Breakdown, J. OF DEMOCRACY, Oct. 2008, at 110, 122 (noting that
the constitution-making process created a “conflict of epic proportions”).
90
See id. at 117 (MAS won 54 percent of Assembly seats).
91
See id. at 118.
92
See David Landau, Constitution-Making Gone Wrong, 64 ALA. L. REV. 923, 954 (2013).
93
See Lehoucq, supra note 89, at 119.
94
See Resolucion No. 013/2008, Mar. 7, 2008 (National Electoral Court), available at http://cd1.eju.tv/wp-
content/uploads/2008/08/resolucion-corte-nacional-electoral-nc2ba-013-2008.pdf.
95
See Simon Romero, Bolivians Ratify New Constitution, N.Y. TIMES, Jan. 25, 2009, available at
http://www.nytimes.com/2009/01/26/world/americas/26bolivia.html.
96
On constitutions as focal points, see, e.g., Russell Hardin, Why a Constitution?, in THE FEDERALIST PAPERS AND
THE NEW INSTITUTIONALISM (Bernard Grofman & Donald Wittman eds., 1989); Richard H. McAdams, Focal Point
Theory of Expressive Law, 86 VA. L. REV. 1649 (2000).

16
enforcement of the rules was done by the opposition itself through political means. This also
depended, however, on the relative strength of the opposition in the Bolivian context – i.e., the fact
that it had similar, if not exactly, the same strength and organizational capacity as Morales’s
supporters.

The key potential downside to replacement clauses, however, is similar to those that apply
to tiered amendment thresholds: they may prove inflexible or ill-adapted to responding to the
evolving nature of threats to democracy. The Hungarian case offers an interesting example. The
existing constitutional text required a two-thirds majority for either amendment or replacement.97
Under some political conditions, this may have been sufficient to block any chance of abusive
constitutional change: at national parliamentary elections in 2011, Fidesz won only just over half the
votes. But under Hungarian electoral rules, this gave Fidesz over two-thirds of parliamentary seats.98
This in turn allowed Fidesz to pursue of strategy of abusive constitutionalism via first amendment,
then wholesale replacement of the existing text.

Replacement clauses may also suffer from problems at the level of constitutional theory.
They pose a very strong variant on the dead-hand problem, where actors may question whether the
existing (and often delegitimized) constitutional text can constrain the procedure for new
constitution-making. Morales’s allies repeated attempts to shake off the restraints by invoking
constituent power doctrine suggests the weaknesses replacement clauses may face in trying to
constrain behaviour at high-stakes moments. Nonetheless, replacement clauses might be defended
as an approximation of the way a given society feels the constituent power ought to be wielded.
Indeed, they may be seen as a more legitimate effort than judicial attempts to restrain constitution-
making ex post. The fact that the constraints ultimately proved influential in Bolivia suggests that the
democratic objections, although serious, may not be insuperable.

On balance, then, the replacement clause option deserves more attention by both scholars
and constitutional designers. Existing replacement clauses are often insufficient in this regard: they
reify the traditional constituent power view by requiring referenda, but otherwise allow
replacement by majoritarian politics. The replacement clauses across Latin America tend to reflect
this vision. The clauses might be improved with more careful attention into both the conditions that
will trigger constitutional replacement along with the process that would need to be followed. In
both cases, rules would need to be tailored to local political conditions. We must not expect those
rules to hold in all cases of constitutional replacement, but the Bolivian example suggests that they
may exert influence even in fairly difficult environments, at least in aiding an already organized
opposition.

C. Substantive Restraints on Constitution-Making

A final possibility is the imposition of substantive limits on processes of constitutional

replacement, either ex ante in constitutional texts or ex post by judges. There is precedent at least

97
Prior actors temporarily altered the Constitution to require four-fifths approval for replacement, but Fidesz
was able to get around this requirement by removing the four-fifths clause on a two-thirds vote. See Andrew
Arato, Post-Sovereign Constitution-Making in Hungary: After Success, Partial Failure, 26 S. AFR. J. ON HUM. RTS.
19, 41–43 (2010).
98
See, e.g., Alan Renwick, Hungary’s New Electoral Law, Part 2: Analysis, POLITICS AT READING BLOG (Dec. 26,
2011), available at http://blogs.reading.ac.uk/readingpolitics/.

17
for the ex ante approach.99 In South Africa, in 1996, the Constitutional Court of South Africa (CCSA)
issued the first-ever decision of a court invalidating a democratic constitution: in the First
Certification Case,100 the Court held that the draft constitution adopted by the democratically-
elected Constituent Assembly (CA), and submitted to it for review, could not be certified as valid in
its entirety. Instead, the Court held that there were a number of areas in which the draft
constitution failed to comply with the “constitutional principles” (CP’s) contained in the interim
Constitution, and agreed to by the National Party (NP) and the African National Congress (ANC) as
the basis for the transition to democracy.101 The CA responded by adopting a series of changes to the
constitutional text designed to address these concerns. And in December, in the Second Certification
Case,102 the CCSA upheld the entire constitution as valid, thereby once again exercising a substantive
power of judicial review in respect of a democratically-drafted constitution.103

Substantive restrictions on constitution-making of this kind are, of course, the most foreign
to the classical constituent power theory. As Colon-Rios points out, they seem to move constitution-
making away from the traditional constituent power conception and towards some as yet
underexplored alternative.104 That is, while eternity clauses and the unconstitutional constitutional
amendment doctrine can be defended as a way to safeguard the constituent power of the people by
limiting the scope of changes that can be made by their delegates, substantive restrictions on
constitutional replacement cannot be justified this way, because they seem to limit the power of the
people to attempt any fundamental reworking of their political order. These difficulties might be
greater in some contexts (i.e., where judges or older constitutions impose substantive restrictions)
than in others (i.e., the South African context, where an inclusive bargaining process produces an
interim constitution with restrictions on the final text). At the same time, the appeal of substantive
restrictions on constitution-making may be that they show difficulties or incompleteness in the
constituent power approach. It may be that the task of differentiating “authentic” from “fake”
exercises of constituent power is a hopeless one. Or the constituent power theory may be
incomplete in asserting that even an authentic act of the people can legitimately create certain kinds
of political orders.

The key advantage of such a doctrine from a democratic perspective, however, is that it
provides a form of ultimate “anti-circumvention” device in respect of other restraints on

99
The South African certification decisions discussed here are the best known examples of substantive
restraint, but not the only ones. The German Constitutional Court, in its recent Lisbon decision, also suggested
that the “eternity clauses” in the existing German Basic Law would constrain not only efforts at constitutional
amendment, but also constitutional replacement: Lisbon Case, BVerfG,2 BvE 2/08 from 30 June 2009.
100
Certification of the Constitution of the Republic of South Africa, 1996 1996 (4) SA 744 (CC).
101
See discussion in Christina Murray, A Constitutional Beginning: Making South Africa’s Final Constitution, 23
U. ARK. LITTLE ROCK L. REV. 809 (2001); Phenyo Keiseng Rakate, A Note on the Certification of the Constitution of
the Republic of South Africa, 1996 by the Constitutional Court, 9 AFR J. INT’L & COMP. L. 934 (1997); Matthew
Chaskalson & Dennis Davis, Cases & Comments, 14 S. AFR. J. HUM. RTS 430 (1997); Carmel Rickard, The
Certification of the Constitution of South Africa, in THE POST-APARTHEID CONSTITUTIONS: PERSPECTIVES ON SOUTH
AFRICA’S BASIC LAW (Penelope Andrews & Stephen Ellman eds., 2001); The Hon Albie Sachs, South Africa’s
Unconstitutional Constitution: The Transition from Power to Lawful Power, 31 ST. LOUIS U. L.J. 1249 (1997).
102
Certification of the Amended Text of the Constitution of the Republic of South Africa, 1996 1997 (2) SA 97
(CC).
103
See, e.g., discussion in Rakate, supra note 101, at 940–42.
104
Joel Colon-Rios, The Legitimacy of the Juridicial: Constituent Power, Democracy, and the Limits of
Constitutional Reform, 48 OSGOODE HALL L.J. 199 (2010) .

18
constitutional change. If political leaders face constraints in their attempt to achieve abusive forms
of change via amendment, one logical response will be to turn to a process of constitutional
replacement. Equally, if replacement processes are subject to procedural constraints, a further
potential response by would-be autocrats may be to adopt a new constitution via some distinctive or
novel constitutional process. A doctrine of substantively unconstitutional replacement, however,
puts an ultimate curb on these tactics: like an ex post doctrine of unconstitutional constitutional
amendment, it gives courts broad discretion to respond to the particular threats to democracy, as
they arise in particular concrete circumstances. It also allows courts to limits such tactics, whether
they are pursued via processes labelled constitutional “amendment” or “replacement”.

The very fact that such a doctrine is recognized, in certain contexts, may also help create an
important disincentive for political actors to engage in this kind of end-run behavior. Doing so will
involve a clear expenditure of time and political capital by proponents of change. If such tactics are
unlikely to succeed, in the ultimate analysis, it may thus also make more sense for political leaders to
modify their proposed package of constitutional changes, and make additional “concessions” to
democracy at the outset.

Where courts are in fact called on to apply such a doctrine, there will also often be limited
downsides to their attempting to apply it as a means of limiting abusive constitutional change: If
they apply such a doctrine in these circumstances, they face quite a high likelihood of political
attack.105 Yet if courts decline to apply such a doctrine, out of fear of such an attack, the new
political order they find themselves in will often be one that gives limited weight to the value of an
independent judiciary – and thus ultimately attacks the court in any event. This is certainly what
happened to the courts in Venezuela in 2000. Applying the doctrine, under conditions of abusive
constitutional change, therefore, may ultimately pose only quite modest risks for judicial
independence, or the capacity of the judiciary to play a role as guardian of democracy. If such a
doctrine succeeds in constraining the relevant forms of change, it will offer clear advantages for
democracy, whereas if it fails, it may simply be hastening the inevitable erosion of key democratic
institutions and values.

Again, however, these trade-offs at the level of democratic theory may be swamped by
practical issues, and particularly the question of the political conditions under which substantive
restraints will in fact serve as an effective constraint on attempts at abusive constitutional change. In
South Africa, the context for such a doctrine was not one that involved any suggestion of abusive
constitutional action. Yet compliance with the decision of the CCSA in the First Certification Case
arguably depended on a number of quite context-specific factors (in addition to the unique role
played by President Mandela in promoting respect for the Court, and the Constitution).106 First, the

105
In Zimbabwe, for instance, the quite modest attempts by the Supreme Court to impose limits on Mugabe’s
actions in 2000 led to a direct attack on the Court, which led to the eventual resignation of the Chief Justice,
and appointment of a range of known Mugabe loyalists. See, e.g., Peta Thornycroft, Zimbabwe High Court
Judge Quits, THE TELEGRAPH, Jan. 4,2002,
ttp://www.telegraph.co.uk/news/worldnews/africaandindianocean/zimbabwe/1380399/Zimbabwe-High-
Court-judge-quits.html.
106
From the outset, Mandela showed a deep commitment to respecting the decisions of the Court and the rule
of law: see, e.g., Nelson Mandela, President, Speech at the Inauguration of the Constitutional Court (Feb. 14,
1995); Mandela’s response to Executive Council of the Western Cape Legislature v President of the Republic of
South Africa 1995 (4) SA 877, in Tom Cohen, Mandela Undismayed by High Court Setback, S.F. CHRON., Sept. 23,

19
decision showed a clear exercise of independent judgment by members of the Court, yet at the
same time did not require major changes to the terms or structure of the constitution.107 Second,
the ANC would have paid a very high political price if it had attempted to ignore the Court and adopt
a more unconstrained approach to democratic constitution-making, and simply relied on (say) resort
to a popular referendum: Such an approach would not only have angered the NP, but also the
Akrikaaner far-right and Inkatha-Freedom Party (IFP), both of which had re-joined the constitution-
making process only at the certification stage.108 It could thus have quite easily have provoked
widespread violence and instability – of the very kind that the two-stage approach to constitution-
making in South Africa was designed to avoid.109 Third, the Court’s decision was situated in, and
explicitly drew on, a broader international context that supported compliance with the decision. The
move toward a non-racial constitutional democracy in South Africa, as Heinz Klug has argued, was
integrally bound-up with international developments and pressures.110 Some of these trends
concerned the dominant form of democracy, and its incorporation of rights-based
constitutionalism.111 But others involved the role of the international community in “intervening” in
national politics, or internal state affairs, so as to protect human rights and racial equality in South
Africa.112 The ANC leadership thus had a clear interest in preserving international support for, and
confidence in, the process of national constitutional transition – by complying with the CP’s and the
Court’s interpretation of those principles.

The way in which the Court itself engaged with transnational constitutional norms also had
the capacity to increase the perceived legitimacy of its decision in the eyes of key domestic players –
and thus the chances that the ANC would feel compelled to comply with the Court’s decision. The
Court, for instance, placed extensive reliance on transnational norms in defining the meaning of
“universally accepted” rights, freedoms and civil liberties in the CP’s.113 It thus relied on the absence
of legal, or constitutional, protections in other countries as a reason to reject challenges to the draft
constitution based on its failure to include certain rights.114 While the Court could potentially have
done more to ground judgments of invalidity (rather than validity) in these terms, its consistent
reference to global practices had an important capacity to influence public perceptions of what the
Court was doing in this case. The message it was sending was that this was a Court engaged in an

1995, at A12 . For discussion, see, e.g., HEINZ KLUG, CONSTITUTING DEMOCRACY: LAW, GLOBALISM AND SOUTH AFRICA’S
POLITICAL RECONSTRUCTION 150 (2000).
107
Murray, supra note 101, at 835
108
ALLISTER SPARKS, BEYOND THE MIRACLE: INSIDE THE NEW SOUTH AFRICA 4 (2003); NELSON MANDELA, LONG WALK TO
FREEDOM 577–80 (1995).
109
One of Mandela’s key successes prior to the 1994 elections was to persuade the Akfrikaner separatist
leader, former Chief of the Defence Force General Constand Viljoen, to abandon a strategy of armed resistance
and to participate in elections: the Freedom Front party he formed not only participated in the first national
democratic elections, but won seven seats in the new Parliament: see TOM LODGE, MANDELA: A CRITICAL LIFE 4
(2006).
110
Klug, supra note 106.
111
Id. at 61–68.
112
Id. 51–58.
113
Indeed, the parties to constitutional negotiations arguably themselves endorsed some notion of
transnational anchoring, or an international constitutional minimum core, in adopting such language.
114
Such as the right to life of a fetus, rights of an employer to “lock out” workers, rights to full market
compensation for the taking of property, rights to intellectual property protection and recognition of the
family as the fundamental unit of society, and to various structural constitutional provisions: First Certification
Case 1996 (4) SA 744 (CC) at paras. 59–62, 65–67, 73, 75, 96–103, 161.

20
attempt to interpret those requirements, or principles, in light of both South African history and
conditions – and global constitutional practices. Thus, the conditions that allowed the judicial
enforcement of substantive restraints to work in South Africa may have been highly particularized.
At the same time, we think that the concept of a “substantively unconstitutional constitution” is
worth developing further in future scholarship.

As with definitions of constituent power, the transnational engagement demonstrated by

the CCSA may be one way to bolster the effectiveness of either textual or judge-made substantive
principles. This, in effect, might be seen as the Court linking judgments about the validity of
proposed constitutional changes to some notion of an international constitutional “minimum core”,
or core set of constitutional provisions that are common to all truly functional constitutional
democracies.115 We recognize that these kinds of principles are still inchoate even in the context of
international human rights law. Further, in some contexts, truly transnational engagement by courts
may in fact hinder, rather than help, efforts to restrain abusive constitutionalism.116 Certainly, in
countries such as Venezuela or Zimbabwe, any transnational engagement by a court would likely
need to focus on regional (i.e., Latin American or African), rather than truly global (i.e., European or
Anglo-American) norms, in order to increase a court’s perceived legitimacy. 117 But, providing it is
appropriately tailored to the particular context, transnational engagement is still likely the most
promising approach towards developing substantive restraints on constitutional change, as one of
the many tools available for limiting abusive forms of constitutional change.

IV. Conclusion

This essay has argued that the sharp distinction between constitutional amendment and
constitutional replacement found in much current scholarship and doctrine is problematic. Both
routes can be used for abusive constitutional ends. It has also argued that a full consideration of the
toolkit used for constraining constitutional amendment suggests the potential of a similar toolkit for
constraining constitutional replacement. In fact, cases like Venezuela, Bolivia, and South Africa
demonstrate that precedent for various kinds of restraint.

We suggest two intersecting lines of inquiry for future work. First, the legitimacy of different
forms of restraint remains under-theorized. Substantive restraints, in particular, may demonstrate a
sharp tension with the dominant constituent power theory. Thus, work on the different kinds of
constraints may help to illuminate weaknesses in the dominant conception and ways in which that
conception might be supplemented by alternative models of the theory of constitution-making.

Perhaps more importantly, we have suggested the necessity of work on a more practical
question: under what political conditions will the restraints outlined here be effective? The examples
considered in this paper suggest that these conditions may be quite demanding, although not
impossible to meet. The case-studies explored in the paper suggest that two conditions in particular

117
See, e.g., Sachikonye, supra note 3, at 12 (noting anti-Western, anti- imperialist rhetoric on the part of
Chavez); Kriger, supra note 20, at 72 (noting Mugabe’s attack on the MDC and White Zimbabweans, as
“stooges” for the British government).

21
may be important in this context: a high level of judicial independence and institutional security, and
a political context in which opposition forces are relatively strong and well-organized, and thus
simply in need of additional time, symbolic support – or a focal point for action – in order to succeed
in defeating attempts at abusive constitutional change.

In Colombia, in 2003, for instance, an unusually high-capacity and independent court with a
strong base of support was able to use a doctrine of unconstitutional amendment to take on a
popular president, but one who was the head of a loose coalition of political forces, rather than an
overpowering political machine. Similarly, in Bolivia, in 2009, an independent electoral court was
able to take on a popular president, with the support of an opposition that was too socially and
economically powerful to be marginalized. In South Africa, it is also clear that a strong degree of
judicial independence, and credible threat of opposition violence, were important factors
underpinning the effectiveness of a doctrine of substantive unconstitutional replacement – in
addition to the broader transnational context. More work is needed we suggest, however, in order
to understand the degree to which these conditions are in fact general requirements for the success
of any form of legal or constitutional constraint on abusive patterns of constitutional change.

There is always a danger that a court may be too successful in this context, in ways that raise
democratic constitutional concerns. But in most cases, the more pressing danger is that they will be
too weak – or that the objections to the doctrine will be practical, rather than logical or democratic.
Further, different devices place different kinds of demands on courts and other political actors. The
replacement clause approach, for example, may work well in contexts where courts are relatively
weak but opposition political forces relatively strong (as in Bolivia). Ex post judicial methods may be
a better choice in contexts where courts have relatively high legitimacy and independence. And
transnational engagement may be a more worthwhile strategy in some contexts (i.e., South Africa)
than others (i.e., Venezuela or Zimbabwe). These are urgent questions given the frequency with
which anti-democratic forces can use the mechanisms of constitution-making as a way to undermine
democracy itself.

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