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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?

No, an unamendable constitution is democratic Show more Show less

Unamendable constitutions strengthen democracy by protecting citizens from a bad political actor in government.
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Voters keep primary constituent powers

There is nothing stopping governments from writing a new constitution.
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Context

Constituent powers can be separated into two broad categories: primary and secondary powers. Primary constituent powers are the ability to draw up a new constitution, while secondary constituent powers are those which allow for the amendment to an existing constitution.

The Argument

Even when a constitution is unamendable, voters retain primary constituent powers. Incoming democratic governments can draw up a new constitution at the behest of the public. Just because they cannot amend an existing constitution does not mean democratic constitutional change cannot take place in any capacity. Therefore, unamendable constitutions are compatible with democracy.

Counter arguments

Overcoming an unamendable constitution and necrocracy by drawing up an entirely new constitution is a waste of time and money and opens the door to democratic instability. If a government has to throw out all aspects of an existing constitution and start again from scratch to make a minor constitutional amendment, the process of updating a constitution would come with substantial risk. Institutions could be undermined, the public could lose faith in the democratic process, and fundamental human rights could be at stake. This leaves an unacceptable margin for abuse in the amendment process. By undermining human rights, democratic institutes and political stability, unamendable constitutions go against the core values of democracy.

Framing

Premises

[P1] Even under an unamendable constitution a government retains the ability to draw up a new constitution. [P2] This means the public can enforce constitutional change. [P3] Therefore, unamendable constitutions are compatible with democracy.

Rejecting the premises

[Rejecting P3] Drawing up a new constitutions increases instability and leaves a nation vulnerable to human rights erosions and abuse of powers. Democracy values political stability, human rights protections and democratic processes. Because unamendable constitutions threaten these values, they must be considered undemocratic.

Proponents

Further Reading

References

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    This page was last edited on Wednesday, 22 Jan 2020 at 15:05 UTC