Jurists Debate Legitimacy Of Ammendments
Published: Thursday, September 19, 2013
Updated: Thursday, September 19, 2013 02:09
In an era when American voters have sought to address controversial issues such as same-sex marriage and mandatory balanced budgets through constitutional amendments, an Israeli and Polish jurist speaking at the law school on Tuesday discussed the validity of such amendments. The two agreed on the importance of constitutional amendments to the survival of a constitutional democracy, but their opinions differed on how to determine amendments’ legitimacy.
During a panel discussion titled “Unconstitutional Constitutional Amendments” at the Barat House on Newton Campus, Aharon Barak, former president of the Supreme Court of Israel, and Lech Garlicki, a Polish judge on the European Court of Human Rights, examined the validity of such amendments and of the amendment process itself. Barak addressed the phenomenon of amendments in the U.S. The constitutionality of amendments, however, “isn’t that often discussed in the United States,” where the constitution is difficult to amend, said Vicki Jackson, a professor at Harvard Law School and the discussion’s moderator.
In contrast, Garlicki addressed the issue as it is experienced in Europe. “If there is a problem with constitutional amendments, this causes great controversy,” he said. European courts are generally reluctant to involve themselves in such controversy, especially in nations where the courts are weak relative to the government’s legislative branch.
In the U.S., the Supreme Court has not yet held an amendment unconstitutional, although it has reviewed the amendment process. “If an amendment is not adopted under correct procedure, it is not an expression of the will of the people,” Garlicki said. Thus the procedure used to amend the constitution is as important as the amendment itself, he said.
Barak and Garlicki also addressed the tension between generations of citizens, as when an earlier generation tries to bind subsequent generations to a particular strict interpretation of the constitution through an eternity clause. “The United States has a constitution with no express eternity clause,” Barak said. This is in contrast to several European countries such as France and Germany, which can prevent basic law from being changed by subsequent amendment.
“Constitutions usually codify a nation’s basic laws intentions of the originators of the constitution and the fundamental values of a nation throughout its history,” Barak said. “Although history is important, we must ask ourselves, ‘What is fundamental to this country?’
“An amendment is unconstitutional only in those rare cases when you can classify it as changing the basic structure of the constitution,” Barak said, citing as an example a law that would nullify the Bill of Rights. If an amendment were to alter a country’s fundamental structure, he said, it’s tantamount to creating a new constitution.
“The concept of basic structure is a dangerous one,” Garlicki said. Disagreement about it abounds. Moreover, “every country has a different basic structure,” Barak said.
“I think a judge should be very careful in dealing with unconstitutional constitutional amendments,” Barak said. Once an amendment “is declared unconstitutional,” Barak said, “it is dead.” Garlicki agreed on this point stating that if it is declared unconstitutional “an amendment does not exist any longer” and it is not a judge’s place to attempt to save it.
“Issues of unconstitutional amendments raise problems about law and about democracy,” Jackson said at the conclusion of the discussion. Jurists have an obligation to protect both law and democracy, which sometime seem to contradict each other. Especially in the U.S., “where amendment is very difficult,” Jackson said. “Constitutional courts have a greater obligation to reconsider their own decisions.”