Can constitutions be unconstitutional?

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.

To the extent that the constitution-making process is a sovereign act, which does not require legal authority, the position taken by Ryan, Riordan, Hanafin et al certainly holds true. Whether a constitutional amendment was carried out in a manner and according to the power conferred by the Constitution is, however, a judicial matter. An amendment to the Constitution can therefore be just as ultra vires as an ordinary law can be.

The key to understanding the concept of unconstitutional constitutions lies in accepting that some clauses of the Constitution are actually greater than others (superior norms). It’s equally important that we accept that even for written constitutions, there are important unwritten principles which are not only part of the Constitution but that are also superior norms (the jurisprudence of the Supreme Court of India in “Kesavananda Bharati … vs. State Of Kerala And Anr”).

Superior norms are the backbone of every constitution, the rules that define the nature of the community it’s meant to govern, and how it (the Constitution) is supposed to be construed. They are the unammendable rights and features of the Constitution. To change them would be to change the very nature of the contracting parties and therefore redefine the subject of the contract (as well as being a political charter, the Constitution is a social contract).

A fierce critic of Kelsen, Herbert Lionel Adolphus Hart, actually thought that laws could be invalid if they did not obey these superior norms (H. L. A. Hart, 1994). In what could have inspired Kesavananda, he distinguished between a failure for want of form from a failure for want of substance, arguing that the latter could only be assessed by interrogating unwritten societal norms and rules.

Fortunately, norms are increasingly being codified in the form of constitutional preambles, constitutional and national values, non-derogable norms and unammendable human rights and freedoms. The clause on uncontestable constitutional supremacy is itself a superior norm. If we consider Kesavananda (where the court affirmed the place of the preamble in the Constitution) and “Lord Wright Jones v. Commonwealth of Australia” (where the court firmly stated that the Constitution is a federal compact which construction must hold a balance between all its parts), we notice a seismic shift from Ryan (supra) where popular amendments can be carried out as of right to where they have to be justified.

Superior norms are the cords that bind the Constitution together; individually, they reflect throughout the entire document. Attempting a comprehensive amendment that considers all instances of the norm is not only an arduous task; it is to unmake the law. If I may cite a few examples… A popular initiative to rid the Constitution of the two-thirds gender rule through an amendment of Article 27 can be procedurally correct. However, to attempt this feat without suitably amending the Preamble, Articles 2, 10 (2), 19, 20 (4), 21(3), 81, 97 and the rest of the gendered provisions of the Constitution as well as the implementer Acts (ordinary norms) is to inject massive contradictions into the Constitution. The same can be said of Article 159, where the independence of the Judiciary can only be negated if the Rule of Law is also ejected from the Constitution, and many more.

The opposite, the ideal, the harmonisation of the related laws would mean a mass overhaul of our laws, a reconsideration of our international obligations and the realignment of state policy (which would destroy the basis of the Constitution). Not only is it expensive, but also the general population in a liberal democracy cannot be trusted to carry out such comprehensive amendments (Carl Schmitt, 1927).

Contemporary argument has been that a constitution cannot be unconstitutional for lack of another constitution against which alleged unconstitutionality must be construed. To hold this principle true is to assume the equality of norms while also regarding true the fallacy that constitutional norms cannot exist without the Constitution. But as I have demonstrated (albeit summarily), not only are norms unequal, there are superior constitutional norms that exist without and which inform the written constitution. To defy these norms is to defy the Constitution, hence unconstitutionality. ^



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