Unamendability and Constitutional
                    Identity in the Italian Constitutional
                    Experience

Faraguna, Pietro

doi:10.5553/ejlr/138723702019021003008

Cited by 4 publications

(2 citation statements)

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“…The conceptualization of European identity is placed in tension with national identitiesso that, in case of conflict, European identity cannot be contradicted or denied by national identities. As has been argued, 67 in light of this jurisprudence, there is no room for unconstitutional constitutional identities in the EU and, in case of conflict, mechanisms for the protection of values can be triggered, including conditionality. This is a vision similar to that developed in several constitutional orders and called 'militant democracy'.…”

Section: From Fighting For Rights To Reconciling Rightsmentioning

confidence: 99%

Current trends and challenges in comparative constitutional law: In search of a new equilibrium

Baraggia

2023

Maastricht Journal of European and Comparative Law

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Comparative constitutional law is currently undergoing a significant transformation on a global scale. Especially in the field of comparative constitutional studies, the recent past has witnessed an unparalleled number of important developments. Heralding an era of bold change and disruptive trends, these diverse developments have redefined the landscape of the field of comparative constitutional law. Not only countries with weak democratic institutions but also more stable and mature democracies are threatened by these phenomena of backsliding or regression: this is a stark reminder of the inherent contradictions and weaknesses of constitutional democracy. In light of these developments, the contribution reflects on the most pressing epiphenomena of the crisis of constitutional democracy and it tries to sketch out possible research itineraries in the field of comparative constitutional law and EU law in search of a new balance between the two defining elements of constitutionalism: power and rights.

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Section: From Fighting For Rights To Reconciling Rightsmentioning

confidence: 99%

Current trends and challenges in comparative constitutional law: In search of a new equilibrium

Baraggia

2023

Maastricht Journal of European and Comparative Law

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“…Паралельно процес розширення проходив через розробку теорії імпліцитної незмінюваності. 30 Відповідно до ч. 1 ст.…”

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General Characteristics of the Unamendable Norms of the Constitution

Berchenko¹

2023

ФПіЗТП

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The article considers the phenomenon of unchanging provisions of the constitution, their evolution, different classifications. Immutable provisions are considered narrowly – as provisions that are not subject to any changes, as well as criteria (principles), which the changes made should notcontradict. Synonymous concepts denoting immutability are considered – absolute entrenchment, the clause of eternity, stone provisions. The idea of supra-constitutionality, however, is seen as a different phenomenon from the unchanging provisions of the constitution. It is claimed that thematerial (substantive, substantive) requirements for change were not common from the beginning (although the situation has changed quite a few centuries). As practice shows, immutability can be not only formally established in a positive constitutional text. Existing examples lead us to thinkabout the important role of judges who interpret a positive constitutional text. In this case, the constituent power speaks not only through the positive text of the constitution, but also through the judges (for the Kelzen model of constitutional control – the judges of the constitutional court).The unchanging provisions themselves can be changed, as evidenced by relevant examples from practice (albeit isolated). In addition, history knows examples of departure from the positively enshrined immutable provisions (in the case of a rupture of constitutional continuity). Even if theprovisions remain unchanged, there may be no specific jurisdiction to monitor compliance. The absence of explicit immutability does not mean that the practice has not formed implicit criteria of immutability. However, even combined explicit and implicit immutability can still not claimuniversalism in constitutional law.

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Friends or Foes: Is Unamendability the Answer to Democratic Backsliding?

Suteu

2024

Hague J Rule Law

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Unamendability is often viewed as a ‘lock on the door’ that can keep enemies of constitutional democracy out, at least for a time. Unsurprisingly, it has also been invoked as a potential bulwark democratic backsliding. While it may not entirely thwart authoritarian populist takeovers, unamendability – including in the form of basic structure doctrines or constitutional identity review – is said to at least delay them, buy some time for defenders of constitutional democracy to resist, and clearly signal to the outside world (including supranational institutions such as the European Union) that foul play is afoot. This article questions such easy assumptions about the nature and operation of unamendability, both in general and in an authoritarian populist context in particular. It argues, based on the examples of India and Hungary, that unamendability is a tool either too ineffective to be deployed against authoritarian populists in power, even while courts may not have been fully captured, or one they are just as comfortable wielding as their opponents. For example, the Indian Supreme Court’s hitherto celebrated basic structure doctrine has been useless in the face of the court’s refusal to hear or decide key challenges against the government. Additionally, drawing on the Hungarian case, the article shows the dark side of constitutional identity review includes captured courts defending majoritarianism and exclusion in the name of a national identity perceived as under attack. In other words, doctrines of unamendability may quickly and subversively turn into instruments of entrenching the very authoritarian populist projects proponents of such doctrines abhor.

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Unamendability and Constitutional Identity in the Italian Constitutional Experience

Cited by 4 publications

References 0 publications

Current trends and challenges in comparative constitutional law: In search of a new equilibrium

Current trends and challenges in comparative constitutional law: In search of a new equilibrium

General Characteristics of the Unamendable Norms of the Constitution

Friends or Foes: Is Unamendability the Answer to Democratic Backsliding?

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