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Is an unamendable constitution undemocratic? Show more Show less
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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?

Yes, an unamendable constitution is undemocratic Show more Show less

A constitution is supposed to reflect the values of a society at a given time. An unamendable constitution binds future generations to past values, thereby reducing their democratic influence.
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Increased instability

When the electorate cannot achieve constitutional reform through democratic means, they are more likely to pursue violent means of political change.
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Context

The amendment procedure is designed to provide sufficient flexibility within the democratic system so as to prevent violence, upheaval and political revolution. Removing the amendment procedure increases the chance of forcible political change and the margin for violence.

The Argument

If the majoritarian wants to amend a constitution but is persistently confronted by a judicial system committed to upholding the original constitution which strikes down constitutional amendments, a revolution becomes unavoidable. The people’s voice is no longer heard. With no recourse to secure change through political means, the population is eventually guaranteed to pursue it through violent means. Rather than offering stability and protecting democracy, in this case, unamendability provides the precise conditions for its undoing and society’s descent into political violence.

Counter arguments

In strong democracies, unamendability doesn’t necessarily contribute to instability. Because voters retain primary constituent rights, they are able to draft a new constitution even if they cannot amend a previously written constitution. By articulating this to voters and ensuring the electorate feels empowered to force change when the society’s values shift and a previous constitution is no longer appropriate for expressing those values, revolution and violence can be easily averted.

Premises

[P1] When the public's political voice cannot be heard it will resort to violence to bring change. [P2] An unamendable constitution means public calls for constitutional change cannot be heard. [P3] Therefore, eventually there will be violence.

Rejecting the premises

[Rejecting P2] Providing it is articulated to the public that a new constitution can be drawn up, their complaints can be adequately heard.

References

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    This page was last edited on Tuesday, 21 Jan 2020 at 16:06 UTC

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