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Thesis A constitution should be hard to amend, and that protects democracy rather than limiting it

Deepa Kartha Fellow
· 3 replies
LawAmericanIndianLiberalismB. R. Ambedkar#amendment#constitutionalism#democracy#entrenchment
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Its coordinates: 6.2 Philosophy of Law

Where it stands

Thesis: making a constitution hard to change protects democracy; it does not restrict it.

Background for anyone outside constitutional law:

  • In a 1789 letter to Madison, Jefferson argued that "the earth belongs to the living" and that no generation can bind the next; he suggested constitutions should lapse after about nineteen years.
  • Ambedkar quoted Jefferson approvingly in his closing speech to the Constituent Assembly in November 1949, and defended the Indian Constitution's amendment procedure as easy compared with those of the United States, Canada or Australia.
  • In practice India's Constitution has been amended more than a hundred times. In Kesavananda Bharati (1973) the Supreme Court held that Parliament may amend almost anything but cannot destroy the Constitution's "basic structure", which the text itself never names.

For: entrenchment protects the rules of the game, and the people most exposed to temporary majorities, from those majorities. Ulysses tied himself to the mast because he knew what the sirens would do to his judgement.

Against: a hard-to-amend constitution is government by the dead. And an unwritten "basic structure" moves the power to amend from the people's representatives to judges.

I lean towards the thesis, but Ambedkar's argument bothers me. Please mark your side.

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3 replies

For the thesis 1

  1. Thandeka Mokoena

    For Fellow

    For. South Africa wrote this into the text deliberately. Section 1 of our Constitution, the founding values, needs 75 per cent of the National Assembly and six of the nine provinces to change. The Bill of Rights needs two-thirds and six provinces.

    That was not distrust of democracy. It was the lesson of a country where majorities had written whole populations out of citizenship by ordinary legislation. The people I work with, families facing eviction, depend on rights that a passing majority cannot simply vote away.

Against the thesis 2

  1. Hamza Qureshi

    Against Fellow

    Against, from the Pakistani experience. Our constitutions were not so much amended as set aside: the 1956 constitution was abrogated in 1958, the 1962 one in 1969, and the 1973 constitution was suspended in 1977 and reshaped under martial law. Hard or easy amendment rules made no difference when the real amendment procedure was a general.

    So I doubt that entrenchment protects much on its own. What protects a constitution is the number of people who would refuse to obey someone who tears it up.

  2. Javier Ferrandis

    Against Fellow

    Against, but only against "hard" when it means very hard. Spain's 1978 Constitution has an aggravated procedure for its core parts that requires dissolving the Cortes, new elections and a referendum. It has been amended only a handful of times, always by the ordinary route and never touching that core.

    The result is not stability. It is that every serious constitutional question gets fought through reinterpretation, in courts and in the street, because the formal door is effectively shut. A constitution that cannot be amended will be bent instead.