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Is an unamendable constitution undemocratic? Show more Show less

Unamendability is a growing constitutional trend. But is it compatible with democratic values? Does unamendability force future generations into a necrocracy, the ‘dead hand’ grip of those that wrote the constitution? Does it place too much power in the hands of the judiciary? Can institutions face modern democratic challenges without the flexibility to amend the nation's constitution?

Yes, an unamendable constitution is undemocratic Show more Show less

A constitution is supposed to reflect the values of a society at a given time. An unamendable constitution binds future generations to past values, thereby reducing their democratic influence.
(1 of 3 Positions) Next >

Democracy to necrocracy

Forcing future generations to be governed by the 'dead hand' of their founding fathers drags a democracy into a necrocracy.
(1 of 4 Arguments) Next >

Context

A constitution is designed to protect the values of a society. But a society’s values are constantly changing. In healthy societies, core values are constantly being critically examined and those that are found wanting are quickly abandoned in favour of new values more aligned with current social and political thinking.

The Argument

The introduction of an unamendable constitution forces future citizens to be constrained by a constitution that reflects the values and beliefs of their ancestors. Rather than a democratic tool, the 'dead hands' of a society's forefathers restrain social and political development. Under these conditions, a democracy decays into a necrocracy. An unamendable constitution places certain laws above the will of the people. In a democratic society, the people decide what laws and constitutional elements they want. Introducing an unamendable constitutional element denies the voters from exercising their democratic rights and is incompatible with democratic principles.

Counter arguments

Even with an unamendable constitution, voters keep their primary constituent powers. Unamendable constitutions stipulate that no government may amend the constitution, but they cannot stop a government from drawing up a new constitution. Therefore, the voters retain their right to choose the constitutional elements that they want to live under but instead of amending an existing constitution, they would need to get their government to draw up a new one. Because voters are able to keep their constituent powers, unamendable constitutions are compatible with democratic principles and have a place in democratic societies. This argument also suffers from a narrow definition of democracy. Democracy is not merely the process through which we appoint leaders and make collective decisions. Democracy is also the process of guaranteeing individual rights to all citizens. Building an unamendable constitution furthers democracy in this sense. By preventing constitutional tinkering, an unamendable constitution can ensure individual rights are protected from malign political actors forever, guaranteeing the survival of a fully democratic society. [1]

Framing

Premises

[P1] A democracy gives the electorate the power to choose their government and make laws in the people's best interests. [P2] If some laws are off-limits because of an unamendable constitution, the public does not have full democratic control. [P3] Therefore, an unamendable constitution is not compatible with democratic principles.

Rejecting the premises

[Rejecting P2] The constituents always retain the power to draft a new constitution. Therefore, they always have full democratic control.

Proponents

Further Reading

References

  1. https://www.researchgate.net/publication/327400015_Necrocracy_or_Democracy_Assessing_Objections_to_Constitutional_Unamendability_Unamendability_in_Constitutional_Democracies

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This page was last edited on Friday, 17 Jan 2020 at 17:55 UTC