Despite being a creation of the constitution and bound by its limits, the judicial branch of the legislature is awarded a disproportionate share of power under an unamendable constitution. The courts become gatekeepers of the constitution and hold the responsibility of interpreting the original constitution and applying that interpretation to new legislation.
As the constitution ages, and laws are passed beyond the scope and intent of the original document, the margin for constitutional interpretation becomes wider. Under an unamendable constitution, the legality of new legislation is determined by the judicial branch’s interpretation of the written constitution. This awards the judicial branch vast powers to strike down new legislation it deems unconstitutional under its interpretation of the constitution. It effectively makes the judicial branch, a collection of unelected judges, the final arbitrator on the country’s legislative and cultural values. In a democratic system, where the judicial system is designed to provide a check and balance to the legislative and executive bodies, awarding the judicial branch sweeping powers that surpass those of the democratically-elected legislative and executive branches goes against democracy. The impact of an unamendable constitution on the judicial branch was visible in South Africa in 1996. The country’s constitutional court struck down the 1996 Constitution after deeming it ‘unconstitutional’ under the interim constitution of 1993.
Constituents Retain Primary Constitutional Powers Providing the electorate maintains the primary power to build a constitution, constituents can take away the constitutional delegation from the judicial branch at any time. Consider this example. A nation has had an unamendable constitution for 200 years that grants a judicial branch legislative oversight. The executive and legislative branches, with the support of the electorate, wish to amend a section of the constitution. After passing the amendment through the legislative and executive branches the judicial branch deems the amendment unconstitutional under the terms of the initial constitution (which prohibits constitutional amendments). The executive and legislative branches, with the support of the electorate, could then write a new constitution to replace the old constitution. This constitution could be amendable, granting future generations both primary constituent powers (who can write a new constitution) and secondary constituent powers (the ability to make amendments), thereby returning the judicial branch’s role to constitutional preserver, rather than interpreter. The Judicial System Is Upholding A Democratic Constitution Making the judicial system the protector of an unamendable constitution is compatible with democracy. The judges, while not democratically elected themselves, are protecting a constitution that was written by a democratically elected government. While they may not have the majoritarian support at that moment, they are acting in accordance with the will of the political supermajority at the time the constitution was written. In this light, when judges protect an unamendable constitution, they are protecting the will of the people and democratic processes, albeit not the current will of the people.
[P1] In a democracy, the judicial branch is supposed to provide a check and balance to the legislative and executive branches. [P2] Under an unamendable constitution, the judicial branch's role becomes that of an interpreter. [P3] This allows it to strike down new legislation (and even constitutional amendments) it interprets as illegal. [P4] This immense power deferred on the judicial branch is undemocratic.
Rejecting the premises
[Rejecting P2] Even when the judicial system becomes an interpreter, the electorate can demand a new constitution at any time, overriding any previous constitutions.