The German presidential election of 1932 took place in the midst of a deep political and economic crisis. In order to prevent Hitler from becoming the new Reichspräsident, the democratic parties of the so-called Weimar coalition reluctantly agreed to support Hindenburg, the arch-conservative incumbent. Because the eighty-four-year-old Prussian ex-general did not want to campaign publicly for reelection, the coalition proposed an amendment to Article 41 of the Weimar Constitution that would enable the Reichstag to extend Hindenburg’s term through simple parliamentary vote. Unfortunately, this maneuver provided Hitler with the opportunity to appear as the “guardian of the constitution.” In an open letter to the German public, Hitler justified his opposition to the amendment on “purely constitutional grounds” and argued that in light of the democratic principle of Article 1 of the Constitution the direct election (Urwahl) of the Reichspräsident according to Article 41 constituted a “fundamental pillar of our state.” If, however, the constitution was “a real foundation of the state’s life,” constitutional amendments should not touch this foundation. The Nazi party would be unable to vote for an amendment, which would not only change the democratic process but break the constitutional framework. 1
While it is highly unlikely that Hitler’s letter was drafted by Carl Schmitt, who in 1932 was still trying to make his career in the conservative Kamarilla around Hindenburg, it was clearly inspired by Schmitt’s writings. In his 1928 book, Verfassungslehre, Schmitt had argued against the overwhelming majority of German constitutional lawyers that certain parts of the Weimar constitution were unamendable, because they represented the “identity and continuity of the constitution as an entirety.” 2 According to Schmitt, liberal scholars like Anschütz and Thoma, who were opposed to any restrictions on the amendment power, reduced the amendment procedure to something “indifferent and neutral” vis-à-vis the very structure of the polity. 3 The formalists failed to see that the constituent power—for Schmitt the central category of constitutional theory—did not disappear with the act of constitution-giving, but was permanently present “alongside and above” the constitution. 4 And because only the constituent power was sovereign, everything inside the constitution, including the amendment power, had to be subordinated. Consequently, as long as the people acted within the constitutional framework or in the sphere of the “merely normative,” 5 they could not change the ori ginal decision over the form of their political existence.
In order to reconstruct his constitutional existentialism in legal terms, Schmitt used a popular strategy among nineteenth-century public lawyers: taking a concept from private law doctrine, here from the law of agency, and applying it to constitutional law. In this sense, Schmitt distinguished sovereignty and competence and argued that every competence is formally and materially limited, because it is granted by a principal to an agent as part of a fiduciary relationship. Analogously, the “competence–competence” to amend the constitution has been granted by the sovereign constituent power to an agent within the constitutional framework, making this agent an organ “competent” to change the constitution. Consequently, the amendment power could not legally go beyond the will of the sovereign constituent power. 6
The limits to the amendment power proposed by Schmitt in 1928 were designed to unmask a supposedly “legal” revolution such as the amendment of Article 41. However, they were never meant to prevent something like the Nazi seizure of power, which was openly illegal. 7 In this sense, Schmitt was consistent when he declared in 1933 that the new Nazi state stood “on its own ground” and not on a constitutional foundation that was “fundamentally foreign and hostile to its essence” (wesensfremd). For Schmitt, the pouvoir constituant had spoken in 1933 and had changed the constitutional identity by extraconstitutional means.
After 1945, however, even liberals like Thoma embraced the self-justificatory myth that 1933 had been a legal revolution and fell for the lie that formalists and legal positivists rather than political extremists like Schmitt had undermined the Weimar constitution. This helped to put unamendability on the agenda of the West German constituent assembly. And although most experts agreed that the so-called eternity clause of Article 79 (3) of the German Basic Law would probably not suffice to prevent a new fall into barbar ism, it was considered to be at least something to “prevent the return of a seemingly legitimate dictatorship.” 8
Soon, not only Germans were convinced that unamendability is a necessary feature of constitutionalism. 9 Roznai’s impressive new book shows how the concept of unamendability has spread worldwide since 1945. While this process has caught the attention of comparative lawyers and constitutional theorists from early on, 10 the interest in amendments and unamendability has increased again in the past years, probably due to the recent global backlash against constitutionalism.
Unconstitutional constitutional amendments are maybe not the “ultimate conundrum of constitutionalism” (Gerhard Casper), but they certainly pose a major challenge for public law. Roznai has taken up this challenge and has produced an illuminating analysis of the problem. His book has already been the subject of much praise. Various workshops and conference panels have been devoted to the work and its author. This popularity is well-deserved. The book summarizes the previous debate concisely, argues diligently, and makes an innovative contribution to a genuinely difficult problem. Probably the greatest strength of the book is its truly global approach, which sets new standards for comparative constitutional studies. The clarity and rigor of his writing helps Roznai to navigate the reader through dozens of jurisdictions and decades of legal scholarship. And one can only agree with Ulrich Preuss that “in times when liberal democracy is under severe stress almost everywhere [. . .] this book could not be more timely.”
Roznai’s theory of unamendability closely follows Carl Schmitt’s Verfassungslehre and the doctrinal path set by it: For Roznai, constitutional theory starts with Sieyes’s distinction of constituent and constituted power. And with Schmitt and others, Roznai construes the relationship of constituent power and constituted power as a relation of subordination: “Constituted powers are legal powers, or competence, derived from the constitution and limited by it” (at 109). But how to classify the power to amend the constitution? As Hartmut Maurer has put it, the amendment power “is constituted power, because it is based on the constitution and bound by the constitution; however, it is, to a certain extent, also constituent power, because it changes the constitution and thus becomes the basis of and yardstick for legislation.” 11 Numerous terms and concepts have been proposed in the past to capture the essence of this particular power. Popular are Burdeau’s pouvoir constituant constitué and pouvoir constituant institué (in contrast to the pouvoir constituant originaire). Roznai distinguishes between “primary” and “secondary constituent power” (the latter describing the amendment power, which is subordinated to the primary constituent power). It remains to be seen whether this rather technical terminology will find wider acceptance.
Roznai also adopts Schmitt’s doctrinal figure for conceptualizing the relationship between primary and secondary constituent power: While Roznai speaks of “delegation,” where Schmitt uses “competence,” both authors think of the problem in terms of agency (at 118, 119 n. 82, and 142). They agree that whoever is competent to amend the constitution acts as an organ within the constitution and is therefore bound by the decision of the principal, i.e., the constituent power: “As a trustee, [the amendment power] possesses only fiduciary power; hence, it must ipso facto be intrinsically limited by nature” (at 133). Amendments to constitutional amendment provisions cannot change or undermine the categorical distinction between primary and secondary constituent power. And even if “the people” are directly involved in amending the constitution (e.g., through a referendum), they act as a constituted people, not as the democratic pouvoir constituant originaire. Roznai emphasizes that radical change remains nevertheless possible but has to be organized outside the constitutional order and is naturally ultra vires. This also applies where the constitution itself seeks to moderate the transition to a new constitutional regime. While a constitution can “recognize” or “declare” the existence of the constituent power (at 166), it can never bind the “primary power.”
The most important consequence of this theory is that unamendability becomes a necessary feature of constitutionalism. All amendment power is limited, even if the constitution is silent on unamendability, because all constitutions reflect “certain basic political-philosophical principles, which form the constitution’s foundational substance, its essence or spirit” (at 143). Amendments can never break the internal “hierarchy of constitutional values” (at 144) or destroy the “constitutional identity” (at 148). But how do we know the identity of a constitution? Roznai emphasizes that spirit and identity are “not to be understood in terms of natural law” (at 143 n. 39) but have to be found through a synthetic interpretation of the written goals and principles of the constitution.
While Roznai remains committed to his binary distinction between primary and secondary constituent power, he acknowledges that it can be difficult to differentiate between the two categories in practice, especially when taking into account the great variety of methods and processes for amending constitutions globally. Roznai proposes a pragmatic solution to ease the theoretical tension by applying a “the more–the greater” formula: “The more similar the characteristics of the secondary constituent power are to those of the democratic primary constituent power described as the ‘popular amendment power,’ the less it should be bound by limitations, including those of judicial scrutiny, and vice versa” (at 162). His idea of a “constitutional escalator” is modeled after the Canadian and the South African Constitution (at 164) and is based on the idea that public participation is strengthening the deliberative quality and the inclusiveness of the amendment procedure, whereas amendments that are enacted merely by elected representatives enjoy less legitimacy (at 173).
Roznai’s theory culminates in the question of judicial review. While for Schmitt the president is the guardian of the constitution, Roznai now opts with Hans Kelsen for a strong court (at 181, 186 n. 31). But should a constitutional court also review amendments? Roznai thinks that all standard reasons for constitutional review are also applicable in the case of amendments (ch. 7). Ultimately, the judicial review of the amendment process protects the decision of the pouvoir constituant, and thus the “democratic base of the constitution.” When judges enforce unamendability, “they are vindicating, not defeating, the will of ‘the people’” (at 193). This does not lead to a gouvernement des juges, because “the people” can always reactivate their primary constituent power to overrule the judiciary.
The exercise of judicial review should be based on a theory of constitutional principles, which has to be developed through a “holistic reading” (Akhil Amar) or a “structural interpretation” of the constitution as a coherent “whole” (at 215). 12 Obviously, this a very vague standard, but Roznai hopes that its openness stimulates public discourse. As far as the crucial practical question is concerned whether unamendable provisions are completely inviolable or protect only against “fundamental abandonment,” Roznai refers to his “spectrum of constitutional amendment powers” (at 219) and argues that “[t]he more the amendment is the product of multi-procedural, inclusive, and deliberative popular amendment powers, which enjoy a very high degree of democratic legitimacy and minimize risks of misuse, the less intense the judicial review of amendments should be, and vice versa” (at 219–220). 13
Certainly the most original chapters of Roznai’s book are the comparative ones. The book starts with a comprehensive analysis of 742 constitutions enacted between 1789 and 2015. Based on this data, Roznai shows convincingly that more and more constitutions contain ever more detailed (explicit) provisions on unamendability. Additionally, Roznai offers a tour d’horizon of the Basic Structure Doctrine from Bangladesh to Belize (at 42–69) and demonstrates that the idea of implicit unamendability is gaining traction worldwide, too. Roznai uncovers numerous interesting cases and discourses that enrich the study of global constitutionalism and will be valuable for future research. Beyond the proof of a global trend, however, the explanatory value of his quantitatively informed approach is mostly limited. 14 When Roznai reexamines the standard categories for unamendability clauses, which were developed on the basis of a much smaller sample of constitutions, the extensive material uncovered by his ana lysis helps him to propose valuable additions and modifications. In his study of the Basic Structure Doctrine, however, the individual data points are not sufficiently contextualized to help the reader understand how the developments in the different countries are connected and which factors motivate the trend.
And while Roznai describes his method as “comparative and theoretical” (at 9), he does not use the comparative material to develop his theory of unamendability, which is instead derived almost deductively from the abstract concept of constituent power. But if Roznai is correct in stating with Markman that the amendment procedure is ultimately a “microcosm of the most fundamental principles of our constitutional structure,” we cannot expect too much from purely conceptual theories of unamendability or constituent power that are methodologically unable to pay close attention to individual contexts. 15 Generally, it is an open question whether constitutional theory should strive for abstraction, or, as the famous German legal scholar Peter Häberle once proposed, should develop general concepts that are nonetheless context-sensitive and “leave room for the ‘historical-individual’” in constitutional theory. 16 And certainly the relation between macro and micro is not a relationship of either/or. But it is striking that those passages, which deal closely with specific institutions, actors, or court decisions, are the more compelling parts of Roznai’s book.
Context-insensitivity of a different kind is noticeable in Roznai’s references to Carl Schmitt. This does not mean that Roznai should distance himself more clearly from Schmitt’s “dangerous mind.” 17 Rather, the core of Schmitt’s argument, namely, his idea of the democratic sovereign as the subject of the constituent power, remains somewhat undertheorized in Roznai’s book. While Schmitt is developing his concept of the amendment power as a “competence” on the basis of his theory of democracy, Roznai asserts a similar connection between democracy and delegation (at 123, 190) without developing a sufficient theoretical basis for his account of democratic sovereignty or dele gation. 18 The references to Sharon Weintal’s three-track democracy, which is based on Ackerman’s dualism (at 127), 19 or the association of democracy with inclusiveness and participation (in his “spectrum of constitutional amendment powers”) would need more elaboration to convince skeptical readers.
The lack of a robust theoretical basis may also be responsible for the fact that Roznai takes the concerns about unamendability ultimately not seriously enough. While he collects and evaluates every argument for unamendability, Roznai’s engagement with critical voices is rather eclectic. Moreover, those who are skeptical of the idea that there exists a “truer” democracy outside the written constitutional order or those who think that self-determination is only possible within the domain of a constituted community get no real answers from Roznai, who keeps repeating that unamendability protects the democratic base of the constitution. 20 Already during the Weimar era, authors who argued against unamendability, such as Thoma and Anschütz, did so because for them democratic freedom was real only where no ultimate “guardian” existed. They believed that representation was not a hindrance for, but a means to achieve, democracy. (And again: The Republic of Weimar certainly did not fail because its constitution lacked an eternity principle.) Against this backdrop, it seems to be a particularly doubtful argument in the current situation that one should have more confidence in the amorphous mass of the pouvoir constituant rather than in the forms and institutions of the constitutional state.
Ernst-Wolfgang Böckenförde, Carl Schmitt’s most brilliant pupil and a former justice at the German Constitutional Court, once criticized the inherent “totalitarianism” of eternity clauses and questioned the stability and self-confidence of a people who believed that they could petrify “their basic social and political values by the force of law inviolably, for itself and for the generations to come, who are denied their own autonomy in advance.” 21 Engaging with this challenge more fully would have made Roznai’s excellent book longer, but it would have added an additional layer of reflection to his analysis.
3 Ernst Rudolf Huber, Dokumente zur deutschen Verfassungsgeschichte 457 (2d ed., 1966).