CCD Weekly Seminar Series: Prof. Rafael Macia-Briedis

The Implicit Problem with Implicit Unamendability  

This presentation will develop a critique of the doctrine of implicit unamendability (or “basic structure” doctrine) based on the doctrine’s reliance on the theory of constituent power. Through this doctrine, courts around the world have invalidated facially valid constitutional amendments that they deem contrary to the core content of the constitution (as identified by the courts themselves). Despite its seeming countermajoritarianism, the doctrine of implicit unamendability is usually justified as an effort to protect (against usurpation by governmental authorities) the people’s “constituent power”—that is, their exclusive prerogative to themselves decide, in their capacity as the legally unmediated sovereign, whether the constitution should remain in force or be set aside. As the presentation will argue, however, the judiciary’s reliance on the theory of constituent power as a lens through which to interpret the constitution risks undermining the integrity of the very framework that courts are seeking to defend. The reason is the implicit subversion of a fundamental premise of constitutional democracy: namely, that the constitution should serve as the final norm for adjudicating contestable considerations about who “the people” are and how their “will” is to be constructed. By reading the constitution as itself recognizing the possibility of a popular will that operates beyond constitutional mediation, courts are opening the door to populist claims to represent a “constituent” demos whose mode of will-expression the constitution cannot then claim to control. And, once that door is opened, courts will be poorly positioned to compete with populist leaders when it comes to identifying whether (and in what sense) the constituent “people” have spoken—as the presentation will show through a study of constitutional revolution in Venezuela.