New York University Public Law and Legal Theory Working Papers


Unamendability and the Genetic Code of the Constitution

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ERPL/REDP, no. 27, no 2, summer/été 2015


An increasing number of constitutions contain “unamendable provisions” in order, inter alia, to protect essential characteristics of the constitutional order or principles perceived as being at risk of repeal via the democratic process. The paper examines unamendable provisions. In order to do so, it studies the text of unamendable provisions which were and are stipulated in 735 former and current written national constitutions. It reviews the origins, structure and content of unamendable provisions, seeking any content-based or material links among them. It also analyzes the characteristics of unamendable provisions and identifies various features of unamendability such as preservation, transformation, aspiration, conflict-management and bricolage. Unamendable provisions fulfill certain functions and reflect the important symbolic value of certain constitutional principles or institutions. It is argued that these limitations, which tie the past, present and future of a polity, are utilized, in a way, to preserve a core of a nation’s constitutional identity thus comprising its “genetic code”.

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unamendability, eternity clauses, constitutional identity, global constitutionalism, constitutional design

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