When Should Courts Invalidate Constitutional Amendments?

1 Introduction

The last few decades have seen courts assume heightened places in democratic societies.^[1] In what has been described by Hirschl as the ‘judicialisation of mega-politics,’ courts regularly police the boundaries of authority between government branches, ensure free and fair electoral markets, and prevent encroachment on fundamental rights.^[2] In addition, as Stone-Sweet highlights, contemporary courts are actively involved in legislative processes.^[3] They not only establish boundaries for law-making behaviour but also significantly reshape the policy-making landscape.^[4]

One of the most controversial ways courts involve themselves in political life is by invalidating ‘procedurally correct constitutional amendments’^[5] (PCCAs) for non-compliance with democratic and/or constitutional values (or comparable substantive reasons).^[6] Ordinary judicial review is frequently characterised in legal academia as a counter-majoritarian act, with widespread debates regarding its perceived anti-democratic nature.^[7] This is precisely why scholars like Bellamy and Waldron have suggested abandoning the exercise altogether.^[8] Nevertheless, as it pertains to ordinary judicial review, the elected branches retain the capacity to override judicial determinations by means of a constitutional amendment.^[9] If courts can invalidate constitutional amendments, elected branches lose this ability. Thus, the court’s power to invalidate constitutional amendments creates the ‘ultimate’ or ‘most extreme’ form of the counter-majoritarian difficulty.^[10]

Beyond these theoretical concerns, sociological challenges also arise when courts invalidate PCCAs on substantive grounds. Courts exercising this power have been known to frustrate instances of ordinary constitutional change.^[11] Taken to the extreme, the ability to invalidate amendments has become a tool that courts in certain jurisdictions have used to aid democratic backsliding or throttle the constitutional project.^[12] Hence, as Khosla states, there is a democratic danger and cost associated with courts being able to invalidate PCCAs.^[13]

Though not yet a global norm,^[14] the power of courts to invalidate PCCAs for non-compliance with democratic and/or constitutional values (or comparable substantive reasons) is gaining momentum and is migrating steadily.^[15] In many jurisdictions worldwide, this power is now firmly entrenched. Considering its ubiquity and expansion, guidelines are needed to constrain the unfettered use of this power. This is especially relevant because, in many jurisdictions, the power to invalidate PCCAs has no textual backing rooted in the Constitution. They are instead based on judicially created doctrines such as the basic structure doctrine or the unconstitutional constitutional amendment doctrine. Per these doctrines, PCCAs which violate the constitutional spirit and/or the constitution’s basic structure are invalid.^[16] Doyle and Yap, among others, remark how, by invoking such doctrines, courts frequently invalidate PCCAs on a whim and according to their own subjective beliefs about amorphous constitutional features.^[17]

Given the proceeding context, this article hopes to answer a relatively straightforward albeit trying question: how can the judicial invalidation of PCCAs for non-compliance with democratic and/or constitutional values (or comparable substantive reasons) be policed? Put simply, when and under what circumstances can or should courts invalidate PCCAs for non-compliance with democratic and/or constitutional values (or comparable substantive reasons)? This article is not a case for or against this power of courts. That is already much debated,^[18] and we may perhaps never resolve the query. Instead, this article aims to provide a template for jurisdictions where courts are already exercising this power and for those where courts will assume this power in the future. Though scholars have highlighted the need for an answer on how to police judicial invalidation of PCCAs and have offered suggestions, their work has barely scratched the surface of the issue. Many responses cannot sufficiently address problems arising from courts invalidating PCCAs for non-compliance with democratic and/or constitutional values (or comparable substantive reasons). Furthermore, these solutions rely heavily on the good faith or restraint of courts, which we struggle to see in many jurisdictions where PCCAs are judicially evaluated.

This article hopes to overcome, to some extent, the limitations of existing templates. It provides an alternative for courts when accessing the substantive validity of PCCAs for non-compliance with democratic and/or constitutional values (or comparable substantive reasons). It suggests that when deciding on the validity of controversial PCCAs, a court should try to answer two sequential questions: First, whether a particular PCCA is the product of across-the-board negotiations and support in the legislature. Second, and only if the answer to the first question is no, the court should seek to evaluate whether the PCCA changes a core principle of a polity’s democratic or constitutional order (or comparable substantive grounds). If the court believes the answer to the latter question is yes, it could invalidate the PCCA. Nevertheless, in addition to the procedural requirements already mandated by the Constitution, the legislature could try to meet the first requirement of across-the-board support and negotiations and repass the amendment. If successful, the court cannot veto the amendment at this stage, irrespective of whether it believes it to be violative of the core principles of democracy and/or constitutional values of a country.

To police the court’s powers to adjudicate the validity of PCCAs, this template provides two significant advantages over competing solutions. The first is that the successful operation of the proposed template depends less heavily on courts exercising self-restraint and/or a judge’s good motives. It also reduces the room for subjective opinions by providing a largely self-enforcing template. As explained in depth later, in most cases, simply following the aforesaid template can ensure that constitutional amendments are not ‘abusive,’^[19] even when they significantly alter the existing constitutional order.^[20] Any over-enforcement of this template by courts would only result in vetoing controversial unilateral amendments while allowing such amendments to be re-passed with greater legitimacy. Related to this is the second advantage of the template: its democratic credentials. In an ideal situation, the relationship between the courts and the elected branches should be dialogic.^[21] Even when existing templates aspire to be dialogic and allow the legislature the final word, they make exercising the final word extremely trying. More often than not, they require courts to exercise restraint, good faith, or other similar virtues; when courts do not, it becomes arduous and sometimes de facto impossible to amend the Constitution. This article’s suggested template sidesteps this issue by providing a realistic path to overturning court decisions. Though this template has limitations and inevitable trade-offs, as will be acknowledged in this article, it provides net benefits over other templates in the market.

This article proceeds as follows. Section 2 outlines concerns regarding courts’ ability to invalidate PCCAs for non-compliance with democratic and/or constitutional values (or comparable substantive reasons). Section 3 discusses scholarly options to address the concerns raised in Section 2. Section 4 offers a suggested template for policing the power of courts to invalidate PCCAs for non-compliance with democratic and/or constitutional values (or comparable substantive reasons) and illustrates its value relative to existing solutions. Section 5 addresses potential criticisms and concerns of the suggested template. Section 6 concludes.

2 Invalidating Procedurally Correct Constitutional Amendments: the Worries

The first major concern with permitting courts to invalidate PCCAs for non-compliance with democratic and/or constitutional values (or comparable substantive reasons) is that once this door is open, it may frustrate regular instances of constitutional change.^[22] This has been seen in jurisdictions where the action has otherwise been cited extremely favourably in legal academia. Consider the example of judicial appointments in India. In India, the Constitution provides that judges of the Indian Supreme Court (ISC) are to be appointed by the indirectly elected President ‘after consultation’ with such judges as the President may deem necessary.^[23] On the other hand, judges of the High Court would be appointed by the president ‘after consultation’ with the Chief Justice of the ISC, the state’s governor, and the chief justice of the respective high court.^[24]

For much of India’s early constitutional history, there was uncertainty about the exact nature of this provision and what it entailed. Appointments assumed a quid-pro-quo relationship between different stakeholders, including the central government.^[25] This reached a tipping point during the 1980s, a period marked by extremely fragmented politics.^[26] During this period, the ISC wielded considerable power and authority, as can generally be the case during periods of fragmented politics.^[27] When the ISC was required to clarify the constitutional provisions relating to appointing judges over a series of three different cases, it completely rewrote them in a threefold manner. First, the word ‘consultation’ was interpreted as ‘concurrence’.^[28] Second, due to this interpretation, the Chief Justice had to agree to all appointments and had the final word in all appointments.^[29] Third, to further clarify how appointments would work, the ISC created a special body called the ‘collegium’ that comprised the Chief Justice, the four most senior judges on the ISC, and the senior-most judge hailing from the high court of a prospective appointee (for high court appointments).^[30] All other political actors were formally excluded from the appointment process.

Though a rather unique system, the collegium helped to provide certainty in judicial appointments during a period of dysfunctional and fragmented politics. Despite its representative concerns due to the exclusion of political actors from the appointment process, it allowed judicial appointments to be relatively smooth for a considerable time. However, the flawed system was not a permanent fix. As the literature on judicial independence teaches: when appointment processes are removed from political supervision, they can become susceptible to corruption, nepotism and patronage,^[31] which generally manifest behind closed doors.^[32] These trends became a common feature of the collegium system in India.^[33]

After being in place for almost three decades, in 2014, when politics in India was no longer fragmented, the government sought to change the collegium system of appointments and bring judicial appointments in line with global standards. With a considerable degree of multi-partisan support – involving no votes against the amendment in both houses of the parliament – the government passed a constitutional amendment that created the National Judicial Appointment Commission (NJAC) that would, among other things, regulate the appointment of judges in the country.^[34] This commission comprised the Chief Justice of India (Chairperson), two other senior judges of the ISC next to the Chief Justice of India, The Union Minister of Law and Justice, two eminent persons nominated by a committee consisting of the Chief Justice of India, Prime Minister of India, and Leader of Opposition in the Lower House of the Parliament.^[35] Though the precise composition of this commission could be reasonably debated,^[36] it met the minimum requirements for international best practices regarding the composition of judicial councils.^[37]

In what is commonly referred to as the NJAC case, The ISC held that the amendment creating the NJAC was constitutionally invalid.^[38] It stated that this amendment compromised judicial independence and thus violated the Constitution’s basic structure. It primarily based this reasoning on the amendment removing the primacy of the Chief Justice from judicial appointments in India, which, per the ISC, violated the principle of judicial independence. The primacy of the Chief Justice in judicial appointments as a requirement for judicial independence is not mandatory in any global jurisdiction.^[39] Thus, the ISC essentially invalidated an amendment that sought to bring judicial appointments in line with international standards – at least to some extent – and retained a system that exists nowhere else in the world. Though it has left the door open for potential amendments reforming the appointment process of judges in India, if the ISC has its say, future governments will need to operate within the ISC’s unique idea of judicial independence.^[40]

Relatedly, the next concern with the unfettered allowance of courts to invalidate PCCAs for non-compliance with amorphous constitutional and/or democratic values is that it can prevent elected branches from overruling via constitutional amendments court decisions – particularly decisions that do not directly relate to courts checking abusive constitutionalism. The prospect of overruling court decisions through an amendment is one of the core functions of a constitutional amendment and is necessary for democratic governance.^[41] Courts can pass decisions to the best of their abilities, but in a democracy, there needs to be some genuine possibility of overruling these decisions.^[42] In the absence of the same, democracy can be transformed into a ‘courtocracy’, wherein policy emanates from the courts rather than the elected branches,^[43] creating a clear democratic danger or cost.^[44] The problem of a polity becoming a courtocracy is only aggravated in cases where the court’s interpretation of specific values/principles significantly departs from majoritarian preferences. The Turkish Constitutional Court’s (TCC) rulings in the headscarve row are a case in point.

Since the 1980s in Turkey, headscarves have been prohibited in universities and public buildings.^[45] This ban originated from administrative directives issued by the relevant ministries.^[46] Following a 1997 military memorandum, the ban was radically implemented.^[47] A significant portion of Turkey’s predominantly Islamic population opposed this ban.^[48] As Bali notes, attempts by parliament to amend or abolish the restriction were regularly annulled by the TCC.^[49] The Court’s rulings were based on a strict interpretation of secularism.^[50] After legislative efforts to overrule the headscarf bans repeatedly failed, two constitutional amendments were proposed in 2008. These amendments aimed to broaden the right to equality enshrined in Article 10 of the Constitution to encompass all public services.^[51] Additionally, they stipulated that any denial of the right to higher education must be explicitly provided by the law.^[52] The primary objective of these amendments was twofold: first, to eliminate the constitutional source for the headscarf ban by prohibiting any form of discrimination in higher education institutions;^[53] second, to negate the TCC’s contention that the headscarf ban was at odds with the constitutional value of secularism.^[54] Furthermore, owing to the Turkish Constitution’s stipulations preventing the TCC from conducting a substantive review of constitutional amendments,^[55] these amendments were largely shielded from judicial scrutiny. Garnering over 80 % support from legislators, these amendments easily surpassed the procedural requirements for enacting constitutional amendments.^[56]

However, the TCC agreed to consider a challenge to these amendments, brought forward by the opposition party CHP.^[57] In its ruling, the TCC invalidated the amendments, citing a breach of the secular values integral to the 1982 Constitution.^[58] The Court also stated that without convening a new constituent assembly, the legislature’s power to propose constitutional amendments was limited to only amendments that aligned with the existing constitution’s original framework and intent.^[59] The TCC even held that it possessed the authority to determine, through procedural review, whether a proposed amendment fell within the boundaries of the Constitution’s original framework and intent.^[60] This judgement marked a significant departure from past precedents. In previous decades, the legislature had passed several constitutional amendment packages that significantly altered the original framework of the 1982 Constitution without opposition from the TCC.^[61] Irrespective of one’s stance on the outcome of the headscarf case or opinions on headscarves in educational institutions, the TCC’s decision-making process, in this instance, raises concerns. The lack of substantial textual or historical basis for its judgement poses challenges from both a democratic and constitutional perspective.

The third major concern with courts invalidating PCCAs in an unfettered way is the use of this heightened power to forward abusive ends.^[62] A relevant example of this possibility comes from the case of term limits. Term limits are one of the constitutional rules intended to ensure the rotation of power,^[63] a fundamental characteristic of a thriving democratic society.^[64] Versteeg and her co-authors state that there have been atleast 60 attempts by heads of state to extend term limits in the 21st century.^[65] Many would be familiar with the landmark case of the Colombian constitutional court halting President Uribe’s attempt to bypass term limits.^[66] This is a frequently cited example of a case where the court’s power to invalidate PCCAs can provide a valuable backstop against democratic erosion.^[67] However, Versteeg and her co-authors mention that this is the only instance in the 21st century of a court preventing an incumbent from surpassing term limits.^[68] In many more cases, courts were the actors that paved the way for would-be-autocrats to surpass term limits.^[69] Moreover, they did this by invoking the values of constitutionalism and/or democracy. Among others,^[70] two notable instances from the 2000s are those of Honduras^[71] and Bolivia.^[72]

Towards the end of 2014, the Supreme Court of Honduras examined a constitutional challenge concerning Article 42 of the Honduran Constitution. Article 42 imposed a limitation on the tenure of the presidency to a singular term of 4 years. This article was also declared unamendable by Article 239 of the Constitution. The challenge against Article 42 argued that it violated the right to free speech and the right to political participation. Furthermore, it was alleged that this clause contravened the right to equality. This was because it discriminated against former presidents in comparison with citizens who had never held the presidency. The court concurred with all these arguments. It based its judgement primarily on international human rights law, which it stated overrules domestic law. The court noted that prior to the adoption of the 1982 Constitution, Honduras had ratified several human rights treaties, including the Inter-American Convention on Human Rights. This act of ratification, the Court asserted, placed an obligation on the framers of the Constitution to align it with these international commitments. This Supreme Court decision permitted incumbent Juan Orlando Hernández to run for a second term in 2017.

A somewhat parallel situation emerged in Bolivia a few years following the Honduran case. Article 87 of the 1967 Bolivian Constitution prohibited consecutive presidential terms. However, during his first term in 2009, Evo Morales replaced the 1967 Constitution. This replacement reset his term count, enabling him to pursue two additional terms under the new 2009 constitution. As his second term approached its conclusion in 2017, Morales appealed to the Constitutional Tribunal to reassess these term limits. The Tribunal invalidated the term limits, stating that they impinged on the right to participate in public affairs. Furthermore, the Tribunal proposed a unique interpretation. It stated that the Constituent Assembly had not initially intended to establish term limits. Term limits were incorporated as a political concession to ensure the Constitution’s ratification. Consequently, this creative interpretation allowed Morales to extend his time in office.

Thus, considering such actions of courts, there is a probability and danger of courts using their power to evaluate PCCAs to carry out ‘abusive judicial review.’^[73] On this danger, scholars like Nugraha have raised the prospect of courts using their power to invalidate PCCAs that were enacted in the past to help a country democratise.^[74] Considering how arduous it is to draft a new constitution, constitutional amendments have been used in many countries to democratise society further. For example, while Chileans continue their quest to replace their Pinochet-era constitution, in the interim, they have amended the originally autocratic constitution to serve its democratic needs. This includes the 2005 amendment package, which removed from the text some of the less democratic dispositions from Pinochet’s regime, such as senators-for-life and the increased role of the armed forces in society.^[75] Amendments such as the ones passed in Chile obviously alter the basic framework of the original constitution. Simply allowing courts to invalidate anything that alters the original framework of the Constitution can, in such cases, lead to severe net negatives for society.

3 Why Are Existing Solutions Insufficient?

The previous section discussed the negative impact of leaving unchecked the court’s power to invalidate PCCAs for non-compliance with democratic and/or constitutional values (or comparable substantive reasons). The question then arises: How can this power of courts be limited? Though not ubiquitous in scholarly literature, a few potential solutions exist.

The first solution to be examined was propounded by Dixon and Landau, who themselves are concerned with some of the problems previously raised in this article. They recognise an inherent legitimacy issue in courts invalidating PCCAs while viewing the courts’ power to invalidate PCCAs as providing a valuable speedbump against abusive constitutionalism in certain circumstances.^[76] Their solution for checking the power of courts to invalidate PCCAs is to limit the possibility of only doing so when courts are quite confident that a given PCCA, either alone or in conjunction with other changes, poses a substantial threat to core democratic values or principles of a constitution.^[77] Dixon and Landau contend that such a limitation on the court’s powers is normatively justifiable and can soften the counter-majoritarian sting.^[78] Others have also pushed for views similar to Dixon and Landau. For example, Bernal argues that the court’s power to invalidate PCCAs can be justified only in a small set of cases wherein it is invoked to protect principles intrinsic to democratic constitutionalism or a normative constitutional project.^[79] These include constitutional rights, the rule of law, separation of powers, etc.^[80] Likewise, Yap argues that courts should be allowed to strike down a PCCA when it substantially destroys the pre-existing constitution, ie, the constitutional change must be ‘manifestly unreasonable.’^[81]

Limiting the court’s power to only such cases seems rational. However, in reality, we soon hit a wall. In the examples from India and Turkey described earlier in the article, courts would most certainly state that they were quite confident that the respective PCCAs posed a substantial threat to core democratic values and/or principles of the respective country’s constitutional project. A case could even be made that the courts in Bolivia and Honduras were also confident that what they were doing was indeed forwarding democracy. Courts in these countries could even justify that they proceeded to invalidate the PCCAs using the manifestly unjustifiable standard – the stringent standard demanded by Yap to be applied in such cases – despite the substantial burden the standard imposes when correctly applied.^[82]

Dixon and Landau aim to provide a possible solution to this dilemma. They argue that engagement with transnational constitutionalism could be helpful as a limitation tool. They define transnational engagement as judicial consideration of institutional practices and jurisprudence across other democratic constitutional systems.^[83] They contend that this kind of consideration can be used as a second look or check against overuse or misuse,^[84] which, they purport, can happen in two ways. First, comparative engagement can help to identify whether a value truly is fundamental.^[85] Second, comparative engagement can help a court to answer whether a PCCA at issue, alone or in conjunction with a package of reforms, constitutes a substantial threat to a fundamental value identified by the court.^[86]

Though transnational engagement can aid courts, and courts should undoubtedly do so to support their interventions, there are three primary reasons why more is needed. First, if courts genuinely want to invalidate a PCCA, transnational engagement can easily support their actions. If we go back to the example of term limits, as was mentioned, courts have only stopped presidents from overstaying term limits in one instance in the present century. There are more examples of them allowing them to overstay term limits. The fact remains that they will likely be able to use transnational engagement to support their questionable decisions. The previously discussed example of India’s National Judicial Appointment Commission is a case in point.^[87] In that case, the court did engage in a degree of transnational engagement and could have engaged in even more such engagement if demanded of them.^[88] Second, at times, certain values might be fundamental to a particular constitutional democracy and, simultaneously, unique in a transnational sense or at least one where transnational engagement would result in more confusion about whether a value is particularly integral. Third, it still leaves courts with the last word on issues concerning core democratic or constitutional (or other similar) principles, and they can choose what that last word looks like. In many instances, this can be troublesome because, in such cases, the only way for any meaningful reform would be to redraft a new constitution, which would demand high social costs.

In the models above, the prevention of overuse or abuse of the court’s power to invalidate PCCAs would require restraint on the part of judges. This cannot be taken for granted in the age of judicialisation of mega politics, wherein courts tend toward exerting their power against the elected branches.^[89] Though we are frequently more concerned with the abuse or overuse of court power, interestingly, Choudhry highlights another issue with limiting the court’s powers in a way that imposes stringent standards on courts’ invalidation of PCCAs. This is because asking for tremendous restraint on the part of the courts can lead to underenforcement by courts when interventions are desirable.^[90] Courts would hesitate to strike down abusive amendments due to uncertainty about their impact (or for other reasons).^[91] This is indeed possible with those courts that value the separation of powers and are cognisant of their place in a constitutional system. Even otherwise, as later covered in more detail, when courts act as backstops against democratic erosion, under-enforcement by courts is a genuine concern. A stringent template can lead to a real possibility of underenforcement if we assume that courts will sometimes need to strike down PCCAs.

This leads us to another view that partly addresses the previously referenced dilemmas: allowing courts to invalidate amendments as unconstitutional but simultaneously giving the elected branches the option to pass the amendments again in some form if certain additional conditions are met. Torres-Artunduaga and García-Jaramillo suggest a version of this option.^[92] In their view, the court’s power to invalidate PCCAs can be democratised and constrained by making the process dialogic and giving the elected branches the last word.^[93] They say this can happen when courts do not rely on vague stipulations such as violating judicial independence or secularism in invalidating amendments.^[94] When courts invalidate PCCAs, they should provide detailed reasons for how the PCCA in question violates particular norms/principles and under what conditions such violations can be avoided.^[95] In this way, the ball is in the elected branches’ court, which can repass the amendment in another form. Though this can reduce the problem of power overuse by courts, it is again not sufficient, especially in the kind of examples discussed above. This is mainly because courts will start providing more theoretical reasons for their decisions. They can still push their preferred constitutional vision. Per Torres-Artunduaga and García-Jaramillo, in the NJAC case, the court avoided this action; however, there were weak signs that the ISC did compromise.^[96] The ISC did state that the primacy of the chief justice in judicial appointments is essential to judicial independence in India and that the elected branches could reform the appointment procedure as long as that requirement is met.^[97] If more concretisation had been required, the ISC could have certainly done so.

Beyond the option suggested by Torres-Artunduaga and García-Jaramillo, another method for limiting the power of courts while giving the elected branches the option of having the final word is by what Cozza terms the ‘approximation thesis’.^[98] According to Cozza, this entails allowing elected branches to change core constitutional provisions if how the change occurred approximates the primary constituent power.^[99] If such a condition is not met for core constitutional provisions, a court can invalidate an amendment.^[100] Scholars such as Roznai and Colon-Rios are of the view that the purpose of the court’s power to invalidate PCCAs is less to prevent abusive constitutionalism and more to safeguard the people’s original constituent power.^[101] This perspective aligns with the stance taken by the TCC in the headscarves case. In that instance, the TCC asserted that without assembling a new constituent assembly, the legislature’s authority to propose constitutional amendments is confined to only those that align with the original framework and meaning of the Constitution. The ISC has also provided similar reasonings for invalidating PCCAs in landmark cases such as IC Golknath versus the State of Punjab.^[102] In his approximation thesis, Cozza views the exercise of constituent power differently from the TCC and the ISC and does not require convening a constituent assembly. Instead, Cozza requires the legislative passing of a constitutional amendment on core constitutional issues to be supplemented with citizen representation and deliberation in both the drafting and the ratification of the amendment.^[103]

The view put forward by the TCC and the ISC is certainly untenable from a change point of view. Each time a PCCA raises concerns, putting together a full-fledged constitutional assembly and engaging in the kind of public participation associated with the modern-day understanding of the constituent power theory would entail enormous social and financial costs. In most cases, these costs would, as a practical matter, result in the courts having the de facto final word. Further, as Yap points out, this view is complicated by having to address whether any constituent assembly subsequently convened would be sufficiently representative and deliberative to be considered democratically legitimate.^[104] This is an important consideration because, as seen in countries such as Venezuela, Ecuador, and Bolivia, would-be-autocrats are easily able to convene constituent assemblies filled with their allies and usher in abusive constitutional changes.^[105]

The case for this argument being rooted in constituent power theory is further decreased today by the plethora of new empirical evidence on constitution-making.^[106] The constituent power theory views constitutions as products of people exercising their sovereign right to make their constitutional orders.^[107] Today, very few constitutions can claim to be such, including democratic constitutions.^[108] Most constitutions are products of elite contestations carried out behind closed doors,^[109] and even behind closed doors, elites exercise power in extremely unilateral ways and on behalf of some rather than all of the people of a state.^[110] Versteeg has even shown how constitutional content on major issues in most countries often diverges significantly from public opinion.^[111] This leads us to question whether the original constitutional project is even worth guarding with our lives.^[112]

On the other hand, Cozza’s version is certainly an upgrade. His version helps to address concerns regarding the overuse of the court’s power to invalidate PCCAs. It also prevents courts from having the final word and allows the elected branches to change the Constitution without a complete redraft. Additionally, it is a relatively theoretically justifiable setup for courts to be able to invalidate PCCAs. However, if we see one of the main justifications for the court’s power to invalidate PCCAs as a backstop against abusive constitutionalism or comparable undesirable change, then beyond a point, this option rears its head. Consider another example from Turkey. After the headscarves row, Recep Tayyip Erdoğan ‘dismembered’ the Constitution using three large-scale amendment packages in the 2010s.^[113] These amendments resulted in some democratic changes, such as increased protection for minorities, expanded privacy rights and the prohibition on military courts trying civilians.^[114] Under the guise of these democratic objectives, significant changes due to these amendments resulted in abolishing the prime minister’s office, diminishing the legislature’s role and transforming the country from a parliamentary system to a presidential system wherein the president was accorded unconstrained powers.^[115] These amendments also curtailed the judiciary’s independence and packed it with loyalists, largely in response to decisions such as the headscarves case, among others.^[116] Erdoğan could have passed these amendments legislatively as his party had the requisite majority in the legislature.^[117] However, he sought public approval via referendums even though he did not need to per the Constitution.^[118] In doing so, he publicly justified the need for such amendments and explicitly stated that he would not pass the constitutional changes through the legislature if the referendums failed.^[119]

The reality is that today’s authoritarian populists can very easily satisfy Cozza’s requirement or a more onerous requirement of convening a constituent assembly and have done so in several cases – though often by using the power of deceitful rhetoric and masking abusive provisions with other democratic changes.^[120]

4 A New Criteria to Evaluate PCCAs for Validity

The previous section described the preliminary work of scholars on limiting the court’s power to invalidate PCCAs. However, while pushing the conversation forward, existing solutions are possibly insufficient from both a democratic standpoint of allowing the elected branches to exercise the final word and from a position of limiting courts. Many of the solution’s successful operations are also highly contingent on having unfettered faith in courts. This section will engage in the preliminary exercise of attempting to sketch the broad contours of a potential baseline template that could be used to police courts’ invalidation of PCCAs in a way that might limit (if not entirely eliminate) some of the concerns and shortcomings of the solutions discussed in the previous section.

As stated in the introduction, this article’s suggested template proceeds from the assumption that there are no questions about whether courts in a given context can substantially evaluate PCCAs for compliance with democratic and/or constitutional values (or comparable substantive grounds). At the same time, to prevent instances like Bolivia and Honduras, which scholars have predicted might be ‘the next trend in global constitutionalism,’^[121] courts cannot rule on the validity of the original constitution. If there are questions regarding provisions of the original constitution, it is better if those provisions are removed through the constitutional amendment process – which, if needed, could then be subjected to the additional requirements of this article’s suggested template. Allowing courts to rule on the original constitution without any form of democratic approval opens up the possibility of abuse while simultaneously resulting in the earlier mentioned ‘courtocracy’ problem.

Consequently, when faced with a case wherein the court must evaluate a PCCA (whatever that may be in a given context),^[122] it will first ask whether a particular amendment is the product of across-the-board negotiations and support in the legislature. If the answer to the question is no, the court will seek to evaluate whether the amendment changes a core principle of a polity’s democratic or constitutional order (or other comparable substantive grounds that it is evaluating against in a given jurisdiction). If the court believes the answer to that is yes, the PCCA can be invalidated. In addition to the procedure mandated by the Constitution to pass an amendment, the legislature can try to meet the first requirement of across-the-board negotiations and support and repass the amendment. If it is successful, the court cannot veto the amendment at this stage.

Before discussing why courts should do as suggested above, a little elaboration on the two questions that they should ask as it pertains to PCCA’s validity and what these questions entail. Regarding the first question, while courts do not need to ensure that an amendment has unconditional support, it should have a fair degree of across-the-board support, particularly from those in the political opposition and be subjected to a satisfactory degree of discussion and debate in the legislature. This requirement might be highly context-dependent and vary on how legislatures are set up in different jurisdictions and the balance of powers between political parties in a legislature (or its respective houses).^[123] If this suggested article’s template is worth adopting, scholars would certainly need to theorise what this requirement might look like in their respective jurisdictions. However, a fair representation of this requirement could be that most major political groups in the legislature – including those in the opposition – agree to the amendment after sustained debate. Today, even the most extreme of dominant party systems have some degree of political opposition; hence, this requirement could be enforced (to a degree) in such systems.^[124] This requirement could be relaxed within reasonable limits or more strictly enforced, depending on the degree of importance of the PCCA and the level of change it brings to the existing constitution.^[125]

Regarding the question of whether an amendment impacts the core principles of a given constitutional and democratic order (or other comparable substantive grounds), courts merely have to be decently confident. They do not need to have the higher threshold of confidence that Dixon and Landau or Yap require of courts. When in doubt whether an amendment impacts a core principle of a polity’s democratic or constitutional order (or other comparable substantive grounds), courts could return the amendment and force the legislature to try to repass it using the standards required by this article’s suggested template.

But why is this the case? If we look at almost any instance of the use of PCCAs to usher in abusive change in countries that have been the focus of constitutional discourse – such as India, Israel, Mexico, Hungary, Turkey, Venezuela, Colombia, Brazil, etc, – a defining characteristic has been a degree of unilateralness.^[126] PCCAs in such jurisdictions were not the product of compromise between different and diverse political groups in the legislature. Thus, even if these amendments meet legislative thresholds and have a degree of public support, they are almost always completely condemned by those not involved in passing the particular amendment. Though democracy frequently becomes a zero-sum game, it does not need to be so.^[127] The hallmark of a well-functioning democracy is that laws and institutions represent those it governs.^[128] This is only possible when actions in a democratic order are not unilateral. Today, we have significant empirical evidence demonstrating that when political actions concerning constitutions are the product of unilateral imposition, they frequently result in outcomes that are not conducive to democratic constitutionalism.^[129] Finding real-world examples of consensus amendments that could be classified as entirely abusive would be rather arduous. On the other hand, political actions that are the product of negotiated bargains help to deepen aspects of democratic constitutionalism in a society.^[130] This is particularly true for vital individual constitutional elements, such as human rights, accountability institutions and constitutional courts.^[131] This is because power distribution during political decision-making results in no single actor or group having absolute and unconditional sway. This typically results in the adoption of institutions, principles, and rules that protect against the arbitrary abuse of power and/or imposition of values by a single actor or group.^[132]

Though legislatures have their democratic defects (which can be quite profound in certain jurisdictions),^[133] they are still arguably one of the more representative forums in a democracy. Moreover, in modern-day politics, for better or worse, people’s interests are represented mainly by political groups in the legislature.^[134] Today, in almost all jurisdictions that claim to be democratic, legislatures have some role to play in passing constitutional amendments. Thus, the first procedural condition of ensuring the amendment receives across-the-board support not only ensures its representative nature (at least to a degree) but also generally results in an outcome conducive to democratic constitutionalism. Though a detailed discussion is beyond the scope of this journal-length article, both representation reasons and consequentialist reasons (such as, in this case, advancing democratic constitutionalism) are valid and mainstream grounds for the legitimacy of political action.^[135] Further, the need for courts to see that an amendment has been subjected to a degree of discussion and deliberation in the legislature adds a safety valve to ensure that it is a product of genuine compromise rather than that of corruption, bribery or other improper arrangements. These are reoccurring problems in many countries worldwide. For example, in the recent BBI saga in Kenya, there were allegations that parliamentarians were paid bribes to vote for the BBI Initiative Bill.^[136] This requirement also helps to address the need for amendments to be a product of a deliberative process. Doing so can accord it extra legitimacy beyond its representative and/or democratic character. Based on theories of deliberative democracy, there is a strong argument to be made that laws do not get their legitimacy simply from their representative nature or because they result in beneficial consequences but from being a product of careful consideration and deliberation by those responsible for passing those laws.^[137]

Proceeding to why the second question pertaining to a PCCA’s validity does not require following particular rules to determine what constitutes the core of a particular democratic or political order (or other comparable substantive grounds). At the outset, this does not mean that everything judges do not like can be classified as core or fundamental to a particular society’s democratic and constitutional order (or other comparable substantive grounds). Courts should still do their due diligence and investigate a society’s history and values and cross-check with transnational constitutionalism, as suggested by Dixon and Landau. Since abuse of a country’s core democratic or constitutional values can occur in many ways, substantially limiting courts would be imprudent. Doing so can result in the concern of under-enforcement, highlighted by Chowdhary. Generally, if any controversial amendment has been passed unilaterally and without being debated and discussed, it will have a degree of legitimacy deficit. As mentioned above, such actions can potentially result in outcomes not conducive to democratic constitutionalism. It would always be better if any controversial amendment did not have that. Thus, even if courts end up over-enforcing the second question concerning an amendment’s validity, it would be to ensure that particular controversial amendments can attain a degree of across-the-board acceptance and are the product of sustained negotiation and compromise – resulting in an enhanced legitimacy for those amendments.^[138]

The route suggested in this section provides two significant advantages over competing solutions to police the court’s powers to adjudicate the validity of PCCAs. The first is that the suggested template is less dependent on courts exercising self-restraint or the good motives of its judges. In most models discussed earlier, restraint is an essential component. If courts do not exercise restraint or good faith, it could implicitly or explicitly curtail democratic will. This could happen because courts have the final word on interpretation, or if they do not, the means for the legislature to overrule courts is rather onerous. Many existing solutions to limit judges also overly rely on good faith on the part of judges. If recent history and cases from countries such as Honduras and Bolivia, etc, have taught us anything, it is that we need to be sceptical of judges the same way we are of politicians. Courts might not always have the best interests of democracy in mind. Even when judges do not engage in ‘abusive judicial review,’ as examples from India and Turkey show, they can be susceptible to passing decisions that curtail democratic will or safeguard their institutional standing and power in relation to the elected branches in ways that might arguably not be required by the ideals of separation of powers.

In the template described in this section, courts cannot proceed to the second step if the first question of whether an amendment is a product of across-the-board negotiations and support is answered in the affirmative.^[139] Thus, for amendments with across-the-board support and which have been – debated and discussed, courts – unless they operate with absolute bad faith – have marginal room for their personal opinions to seep in, and we are not entirely dependent on them exercising restraint or good faith. For amendments that do not meet this requirement, courts’ personal opinions can seep into the extent that they can invalidate an amendment. Nevertheless, it allows the legislature to re-pass the amendment in a manner that will ensure extra legitimacy for an already questionable amendment. More often than not, the repassed amendment would be something that was not only a product of across-the-board negotiations and support but also deepens democracy in a society. In a way, this template does not require judges to second guess what is conducive to democracy or a constitution’s basic features. In most cases, this suggested template can be classified as self-enforcing. At the end of the day, courts will likely be unable to use this template to push outcomes not conducive to democratic constitutionalism or engage in abusive judicial review.

Another advantage of this template is its democratic credentials. As mentioned earlier, the prospect of overruling court decisions via an amendment is one of the core functions of a constitutional amendment and is necessary for democratic governance. In an ideal situation, the relationship between the courts and the elected branches ought to be dialogic.^[140] Even when existing templates aspire to be dialogic and give the legislature the final word, they make exercising the final word extremely difficult. Often, they require restraint, good faith or other similar values on the part of the courts. When courts do not exercise those values, it makes the constitutions arduous or even impossible to amend as a matter of practice and/or theory. This could be the case in the model pushed by the TCC or the ISC. In other cases, such as with Cozza’s approximation thesis, they leave open the doors to being easily misused to usher in abusive constitutionalism. Additionally, models such as Torres-Artunduaga and García-Jaramillo, while allowing court decisions to be easily overruled, leave enormous leeway for the courts to decide how the elected branches can overrule the court’s decisions. As discussed earlier, the practical application of Torres-Artunduaga and García-Jaramillo’s models will most likely result in courts dictating the terms of the final constitutional text. In contrast with these models, the suggested template realistically leaves the final word to the elected branches in any manner they deem appropriate as long as the concerned amendment is a product of broad consensus and sustained debate. Though this does make passing an amendment more arduous (especially in jurisdictions where mutual trust between legislative groups is lacking) and impacts a constitution’s flexibility, one would be hard-pressed to find someone who would argue that for any amendment where there is doubt whether it adversely impacts a core principle of democracy and/or the constitutional values of a country, broad consensus is undesirable.

5 Addressing Potential Criticisms and Concerns

The template suggested in the previous section is not perfect. Criticisms and concerns are bound to arise. The template also involves some trade-offs. In this section, I address potential criticism and concerns and discuss why certain trade-offs are worth bearing.

The first criticism that could potentially arise under this template is not considering the general populace’s involvement in evaluating a PCCA’s substantive validity.^[141] Per this article’s suggested template for courts to follow, whether the people are involved (or not) does impact a PCCA’s substantive validity. In recent times, the general populace has increasingly been made a part of amendment processes, especially for those values that concern the core of constitutional democracy.^[142] This public participation could take the form of referendums or other non-binding mechanisms, including citizen assemblies, mini-publics, and non-obligatory referendums. Thus, some might raise the concern that it would be beneficial to incorporate a version of the requirements of Cozza’s approximation thesis within this article’s template.^[143] It must be stated that the suggested template for courts to follow in the previous section does not prohibit the involvement of the populace in the amendment process (and would require it if originally mandated by the Constitution to pass an amendment in the first instance). However, at the same time, this article’s suggested template does not consider the involvement of the public as a determinative factor when courts are gauging the substantive validity of a PCCA.

The article’s suggested template takes this route because constitutional validity is a spectrum. Some provisions might be more invalid than others. As empirically demonstrated by Eisenstadt and Maboudi, group inclusion via political elites is vital for democratic outcomes, and the absence of the same is doomed a failure from a democratic standpoint.^[144] Public participation without group inclusion is unable to generate democratic outcomes.^[145] Thus, if heightened participation (including beyond what is already mandated by constitutions) is added as a requirement for the courts to take into consideration in assessing the validity of PCCAs, it might result in political actors comprising on the need for a controversial amendment to get broad political approval and substitute a degree of the requirement by engaging in heightened participation. Again, this is not merely a theoretical concern. In the earlier discussed example from Turkey, Erdogan did precisely that. Today’s populist autocrats have mastered the art of playing on the populace’s passion and getting them over to their side. At the same time, if a heightened degree of public participation is a part of the template that courts need to examine, spoilers could use public participation as a way to frustrate the outcomes of sensitive negotiations. Another possibility is for political elites to only carry out public participation in amendment processes as a box-ticking exercise and use a farcical public participation process to increase the validity of an amendment. This concern gains more relevance, considering that most societies worldwide do not have the requisite political and constitutional culture for citizens to participate in such processes meaningfully. The failed BBI saga in Kenya shows how public participation in constitutional processes in countries with a low political and constitutional culture can be highly damaging.

Hence, while this article’s suggested template does not preclude public participation in the amendment process (and requires it in the first instance if mandated by the Constitution to pass an amendment), it does not consider it an element that courts should consider in evaluating the validity of a PCCA that might threaten a country’s democratic or constitutional project. Doing so can frustrate the entire purpose of allowing courts to evaluate PCCAs. At the same time, it must be stated that, if situations and conditions allow, political groups in the legislature can, in addition to achieving across-the-board compromise after a period of sustained debate, involve the public in the amendment process (even when not mandated by the Constitution) without courts considering it when deciding whether a PCCA is valid. In fact, there is a case to be made for involving the public in passing core amendments.^[146] Public participation might even be highly relevant for an amendment’s sociological legitimacy in those instances where the political groups in the legislature suffer from low public approval.

The second criticism this article’s template might raise is that it can sometimes result in courts giving their nod of approval to amendments that result in abusive constitutionalism or some other form of allegedly undesirable constitutionalism. For example, different political groups might put aside their disagreements and cooperate to pass an abusive or undesirable amendment. This could be in respect of those that lock out channels of political participation; threaten human rights, particularly the rights of unpopular minorities; or revert to some repudiated constitutional past. Thus, in some ways, while this article’s suggested template does not rely heavily on the good motives of judges, it relies heavily on the good motives of political groups in the legislature. Indeed, this is possible – at least theoretically. Those who fear such outcomes would be more at peace with other templates that allow the courts to exercise the final word in certain circumstances. Nevertheless, as previously described, that results in a catch-22 situation where we again open the floodgates to possibilities of courts misusing their powers and curtailing democratic will.

In real-world cases arising out of the current wave of democratic backsliding, none to very few global examples that result in abusive or undesirable constitutionalism might satisfy the requirements of this article’s suggested template. As stated before, abusive amendments in countries that have been the focus of comparative constitutional studies have generally been a product of some degree of exclusion of political groups in the legislature and/or a lack of sustained debate and discussion in the legislature. In many cases, these amendments are passed almost overnight so as not to come into the public eye and/or allow critics the chance to poke holes. In a hypothetical case where all major political groups in the legislature support a certain kind of abusive or allegedly undesirable change, there is very little a court would be able to do. This is because, as actors without the power of the purse or sword, courts depend on the elected branches for their functioning. Assuming the court even tries to push back in such a case, it would often face retaliation from the elected branches in the form of court-curbing measures. The only instance where the court might be able to push back against such an abusive PCCA substantially would be if the PCCA has significant popular opposition.^[147] This would give the court a degree of room to operate. However, in those cases, it is more than likely that the popular opposition to the PCCA would cause the elected branches to reconsider their approval. Thus, some trade-offs are inevitable in any template. It is my hope that following this article’s suggested template results in more positive outcomes than negative ones. Perhaps we should not let the perfect be the enemy of the good but should be ready to accept small risks, which are present not only with this article’s suggested template but also with any other similar alternative.

The next potential criticism might come from those who think that this article’s suggested template does not provide sufficiently objective criteria for courts to apply. These are concerning both the questions courts must ask when examining a PCCA. They might want to treat law as pure science and condense things down to more straightforward formulas and rules. Though none of the other solutions discussed in this article provides objective criteria per se (and even when they do, they leave considerable room for subjectivity^[148]), those who raise the aforesaid criticism might also have similar concerns with other models. The most significant reason this article does not set out more objective criteria is that it is simply impossible for a general baseline template. This is for two reasons. First, what is classified as ‘the product of across-the-board negotiation and support’ would be context-dependent and specific to a particular time and space. Courts would need to examine the circumstances surrounding the amendment’s passing and the country’s political situation to answer the first question. Though as stated earlier, courts can significantly benefit from scholarly work on what this entails in a particular jurisdiction. Second, the range of ways the core democratic or constitutional values can be affected is too large to be defined ex-ante.^[149] Even Dixon and Landau recognise this predicament and hence propounded transnational engagement as a solution to the problems arising from courts invalidating PCCAs.^[150] Additionally, the problem of defining what core democratic or constitutional values might entail is that different countries can have different elements vital to their democracy or constitutional project. Hence, a global template is often not appropriate or sufficient. Further amendments that might be abusive or damaging in one country might not be in another or not to the same extent.^[151]

Though I would like to believe that this article’s suggested template reduces the amount of subjectivity available to a court, I concede that it leaves some degree of discretion available. Nonetheless, this discretion is crucial because even when evaluating if the thresholds required by the two questions are met, courts might need to exercise some value judgements. Without departing from the template’s baseline requirement or underlying premise, courts might need to relax their ask with amendments less critical to the democratic or constitutional project and demand a higher ask when it concerns those more vital or are arguably making wholesale changes.^[152] Be it this article’s suggested template or any other template, the court’s role is not straightforward and cannot be condensed to an algorithmic formula or a one-size-fits-all method. This is why we have not shifted to artificial intelligence to evaluate constitutional questions such as invalidating PCCAs. Because of the discretion available to courts, I agree that there is a theoretical risk of over-enforcement of the power of invalidating PCCAs. However, all things equal, overenforcement would not result in democratic negatives as the legislatures can repass the same amendment – this time with higher democratic credentials. Thus, this article’s suggested template still provides a considerable limit on courts’ power to invalidate PCCAs while minimising other net negatives. As discussed in the next paragraph, underenforcement should be more of a concern than over-enforcement for those favouring such a power for courts.

Lastly, though there is a risk of over-enforcement with this article’s suggested template; some critics might identify that regarding its practical usage by courts, courts could end up under-enforcing. For example, in answering the first question of this template, courts might sometimes be satisfied with those situations, which many might argue are not ‘the product of across-the-board negotiation and support.’ Again, this is a very realistic concern because while we can at times become blinded by the non-desirable usages of this power of courts, even activist courts have tended to underenforce their power to invalidate PCCAs when needed or desirable.^[153] To such a criticism, I would first highlight that at a theoretical level, this article’s suggested template provides more room for courts to operate than other templates. Moreover, as discussed in Section 4, this article is relatively clear about what it entails, which does not impose severe constraints on courts as a matter of theory. As to the first question in most situations, ‘the product of across-the-board negotiation and support’ would require major political groups in the legislature (including those in the opposition) to agree to the amendment after a period of sustained debate. Though in the paragraph above, the article conceded that courts could potentially relax this standard, it cannot completely depart from it. Many to all abusive or undesirable constitutional amendments might not pass this muster. Regarding the second question that courts need to ask, because the template requires only a reasonable degree of confidence as to whether the amendment affects democracy and/or the core of the country’s constitution; it imposes a lax standard.

If, in reality, courts are under-enforcing, it will most likely not be a result of the article’s suggested template. It will likely be because of the court’s institutional limitations. As actors without the power of the purse or sword, courts depend on the elected branches for their functioning and the enforcement of their decisions.^[154] Consequently, courts are wary of having their decisions ignored by the elected branches as it can affect their legitimacy and credibility.^[155] In worst-case scenarios, they not only risk having their decisions ignored but are also in danger of retaliation from the elected branches in the form of curbing measures.^[156] In addition, major constitutional changes undertaken in present times, especially by populist autocrats, have some degree of public backing, and there might be minimal popular backlash to the elected branches curtailing the court’s independence.^[157] In turn, courts will tend not to want to pass unfavourable decisions against the elected branches. To stay within the elected branches’ ‘tolerance interval’,^[158] they will generally utilise deferral strategies or passive virtues and allow the elected branches to proceed with their actions.^[159] In best-case scenarios, they will try to stay within the elected branches’ tolerance interval by providing extremely weak or narrow judgments to avoid irking them.^[160] Even the ISC, which has otherwise shown little restraint, has at times resorted to using passive virtues and deferral strategies when circumstances do not allow them to pass strong judgements, especially those concerning the validity of PCCAs.^[161] However, this type of under-enforcement due to political circumstances is a problem not only with this article’s suggested template but also with any other existing or potential template. This is an issue beyond the question of invalidating PCCAs. Concerning this article’s suggested template, at a theoretical level, the court would not be compelled to under-enforce.

6 Conclusions

This article attempted to provide a template for policing courts’ invalidation of PCCAs. This is an important exercise, considering courts in many jurisdictions have exercised this power according to whims and without significant restrictions on the power. The suggested template offered is an attempt to provide an improvement over other possible alternatives in the market by decreasing dependency on judges exercising virtues of restraint and good faith, as well as allowing legislatures to overrule courts’ invalidation in a manner that can be classified as realistic.

The template requires courts to ask two questions when examining a PCCA’s validity. First, the court will ask whether a particular PCCA is the product of across-the-board negotiations and support in the legislature. If the answer to the previous question is no, the court will seek to evaluate whether the PCCA changes a core principle of a polity’s democratic or constitutional order (or other comparable substantive grounds). If the court believes the answer to that is yes, it can invalidate the amendment. In addition to the procedural requirements already mandated by the Constitution, the legislature could try to meet the first requirement of across-the-board support and negotiations and repass the amendment. If the legislature can do so, the court, at this stage, cannot veto the amendment, irrespective of whether it believes it to be violative of the core principles of democracy and/or the constitutional values of a country.

By examining PCCAs in this manner, courts can ensure that PCCAs related to a polity’s democratic or constitutional order (or other comparable substantive grounds) are not unilateral. Unilateral amendments generally have the potential to diminish the values of democratic constitutionalism. On the other hand, in addition to likely being more representative and deliberative, those that are a product of negotiated compromises and deliberation tend to enhance the values of democratic constitutionalism.

This article was only a preliminary attempt to answer a vital question in light of the growing tendency of courts to adjudicate substantively PCCAs and the democratic dangers and costs associated with this unconstrained power. If this article’s template is worth adopting, scholars in various jurisdictions have a long road ahead. At the top of the list of tasks would be for area-specific scholars to tweak the suggested template to align with their jurisdictions. Elements essential to a country’s democratic and constitutional order and actions that would classify as across-the-board negotiations and support in the legislature vary. At a broader level, more work needs to be done on the utility of courts’ power to adjudicate amendments. We need more empirical work on when court interventions can make a positive difference and use those empirical works to expand on the baseline template suggested by this article. It might just be the case that new empirical work requires us to abandon this article’s proposed template and devise a new method. Lastly, if empirical work does point us in the direction of this power of courts providing a net positive to democratic societies, more theoretical work needs to be done to justify it. Justifying its use would always be troublesome without significant theoretical backing, causing actors to remain in the ultimate counter-majoritarian dilemma.^[162]

It is hoped that this article can provide a springboard for more pragmatic future discussions on courts’ power to examine PCCAs.