Unconstitutionality of the Constitution

There are superior constitutional norms… To defy these norms is to defy the Constitution, hence unconstitutionality


By Shadrack Muyesu
Constitutions have been defined as political charters that define relationships between the governors and the governed. As such, constitutional amendments are nothing more than political concessions that evidence supervening political moods. The place of the Constitution, however, demands that they be sufficiently rigid so as to rid the right to amend of mala fides, as well as safeguard its certainty.

The truth of this statement not only suggests an inherent imperfection of the Constitution, it also alludes to the existence of superior rules independent of or within the Constitution which constitutional amendments bona fide ought to adhere to. Questions therefore arise: does its imperfection render the Constitution illegitimate? Does the failure of amendments to follow these superior guidelines render them unconstitutional?

Jeffersonians are clear that they do not. Unlike ordinary norms, which derive their legitimacy from a fidelity to the Constitution, they reckon that public participation renders constitutions valid even where they are supposedly imperfect (Hans Kelsen, 1934). As such, unconstitutionality cannot be imputed on the Constitution as it can on ordinary norms. Popular sovereign will is decisive. The certainty of law, its concept and the nature of the change makers are not as important – to the point of being inconsequential even (James Madison, 1788).

For the longest time, the Jeffersonian notion was held true. Efforts to constitutionalise constitutional amendments were resisted by courts and contemporary ideologists alike – and with admirable mettle. In “State (Lemmon) vs. Ryan J.” Justice Kennedy’s proposal that amendments repugnant to natural law be necessarily unconstitutional was, for instance, overruled by a firm majority, which observed that, by addressing itself to what constitutional features were fundamental, and what were not, the Judiciary would be acting ultra vires.

A trilogy of latter decisions emphasising popular sovereign will ensured that Lemmon wouldn’t go down as a one-off influenced by the peculiar circumstances of the time (abortion, being the interest matter of the case, enjoyed a special status in Irish politics). In “Riordan vs. An Taoiseach”, one judge observed that no question of a constitutional amendment properly placed before the people could be unconstitutional.  In “Hanafin vs. Minister of the Environment”, the court not only restated the incompetence of any state organ, including courts, to overrule sovereign will; it also deemed such the will to be freely given and therefore incapable of question…

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