The Question of the Unconstitutional Constitutional Amendment, and The Duty to Obey the Law

Abstract

In recent years, constitutional discourse has centred around the disqualification of modifications made to constitutions on supraconstitutional grounds rather than for a failure to meet the formal requirements for modification prescribed by the constitution and the legitimacy of judicial intervention in such modifications. The purpose of this paper is to pinpoint the theoretical and practical difficulty in accepting these doctrines in the law and to propose an alternative approach that does not allow the court to intervene unless the modification prevents the people from modifying the constitution itself or is made through undemocratic methods. The article claims that the content of the rights protected in an amendment to the constitution should not determine the constitutionality of the amendment but should be examined according to whether it is a law that should be obeyed which raises questions only in cases of harms to jus cogens principles.