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On Yaniv Roznai’s Theory of Substantive Unamendability - Y. Roznai, Unconstitutional Constitutional Amendments: The Limits of Amendment Powers, (Oxford University Press 2017), 368 p.

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Dr. Ali Acar, Cankaya University Law School (Ankara/Turkey) and visiting scholar at Osgoode Hall Law School, Canada.

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1 The concept of legitimacy has various aspects, such as sociological, legal and moral. On this issue particularly, see Fallon R.H. Jr., ‘Legitimacy and the Constitution’, 118 Harvard Law Review (2005) p. 1787 at p. 1784-1801. As that work confirms, it can be hard to draw strict lines between these aspects.

2 Roznai Y., Unconstitutional Constitutional Amendments: The Limits of Amendment Powers (Oxford University Press 2017).

3 Ibid., p. 9.

4 Ibid., p. 80.

5 Ibid., p. 82-100.

6 Ibid., p. 151.

7 Ibid., p. 8.

8 Ibid., p. 141-143.

9 A similar argument is raised by the Venice Commission, which comments that there is no correlation between the existence of unamendable constitutional norms and the judicial review of constitutional amendments. European Commission for Democracy Through Law (Venice Commission), ‘Report on Constitutional Amendment (CDL-AD(2010)001)’, (Strasbourg: Council of Europe, 2010) para. 225, available at <www.venice.coe.int/docs/2010/CDL-AD(2010)001-e.pdf>, visited 15 June 2017.

10 Roznai, supra n. 2, p. 209.

11 Ibid., p. 186-196.

12 Indeed, it is generally assumed that constitutional amendment is the ultimate tool for overturning the judicial annulment of a legislative act, or for overturning the courts’ unpleasant or disagreeable interpretation of statutes and the constitution: Paulsen M.S., ‘Can a Constitutional Amendment Overrule a Supreme Court Decision?’, 24 Constitutional Commentary (2007) p. 285 at p. 285-290. Samuel Freeman, who is a strong supporter of the institution of judicial review, states that ‘[t]he [Supreme] Court’s revocation of popularly enacted measures can be overridden … by constitutional amendment…’: Freeman S., ‘Constitutional Democracy and the Legitimacy of Judicial Review’, 9 Law and Philosophy (1990-1991) p. 327 at p. 334. It seems that Freeman also takes for granted that constitutional amendment is the ultimate tool for overcoming the so-called democratic-deficit, which is claimed to be created by the existence of the institution of judicial review. In a similar vein, the reason John Vile finds judicial review to be acceptable seems to lie in the possibility of amending the constitution. Vile J.R., ‘Limitations on the Constitutional Amending Process’, 2 Constitutional Commentary (1985) p 373 at p. 382. For Vile, ‘[t]he only explicit constitutional limitation on the substance of amendments is the requirement of equal Senate representation in article V’: Vile J.R., ‘Judicial Review of the Amending Process: The Dellinger-Tribe Debate’, 23 Journal of Law & Politics (1986-87) p. 21 at p. 24-25. Or see the following quotation from Charles L. Black, Jr.’s book The People and the Court: ‘[T]he people and Congress always have in their hands the means (not only through constitutional amendment but through the abundant power over the jurisdiction of all the federal courts) … to remove the Court from the function of guarding the Bill of Rights…’ (emphasis added), quoted in Amar A.R., ‘Philadelphia Revisited: Amending the Constitution Outside Article V’, 55 The University of Chicago Law Review (1988) p. 1043 at p. 1088.

13 Roznai, supra n. 2, p. 125.

14 This type of theory should necessarily present and address its idea of democracy. For discussions on the idea of democracy, which may be of use for the subject in question here, especially see Dworkin R.M., Freedom’s Law – The Moral Reading of the American Constitution (Oxford University Press 1996 ; reprint, 2005) p. 1-39, and Lijphart A., ‘Consociational Democracy’, 21 World Politics (1969) p. 207 at p. 207-225; Lijphart A., The Patterns of Democracy (Yale University Press 1999) p. 31-48 .

15 Preuss U.K., ‘Constitutional Powermaking for the New Polity: Some Deliberations on the Relations between Constituent Power and the Constitution’, 14 Cardozo Law Review (1992-1993) p. 644-650 . It is no coincidence that Carl Schmitt stresses the existence of (political) unity upon which a constitution is built or erected, not vice versa: Schmitt C., Constitutional Theory , trans. J. Seitzer (Duke University Press 2008) p. 75-82 .

16 Roznai, supra n. 2, p. 166-167.

17 Kesavananda Bharati v State of Kerala, AIR 1973 SC 1461.

18 The scope of the right to property was the underlying question in Golaknath v State of Punjab, AIR 1967 1643, which somehow led to Kesavananda. It should be mentioned that even though the amendments that were declared unconstitutional by the Supreme Court in Kesavananda (and in subsequent cases) were not directly related to the right to property, the real controversy – which has given rise to the basic structure doctrine – between Parliament and the Supreme Court was, as aptly noted by an eminent constitutional lawyer in India, the right to property. Sathe S.P., ‘Supreme Court, Parliament and Constitution- II’, 6 Economic and Political Weekly (1971) p. 1873 at p. 1873.

19 Various suggestions were made on the issue of compensation for compulsory acquisition of certain property (zamidars’) rights: For example, while some suggested ‘equitable compensation’, others would offer no compensation at all. On this, see Suri K.C., ‘The Agrarian Question in India during the National Movement, 1885-1947’, 15 Social Scientist (1987) p. 25 at p. 34, 35 and 38.

20 ‘The Directive Principles of State Policy set forth the humanitarian socialist precepts that were, and are, the aims of the Indian social revolution’: Austin G., The Indian Constitution – Cornerstone of A Nation (Oxford University Press 1966) p. 75 .

21 Roznai, supra n. 2, p. 200-201.

22 For a subtle analysis of the hegemonic nature of the referendum held in Turkey on 16 April 2017 for radical constitutional amendments, see V.R. Scotti, ‘On the pro-hegemonic nature of referenda for constitutional reforms in Turkey – A focus on 16 April 2017 referendum introducing presidentialism’, (20 June 2017). (presenting comparative insights into the 2016 Constitutional referendum in Italy and the April 2017 referendum in Turkey), available at <www.osservatorioaic.it/on-the-pro-hegemonic-nature-of-referenda-for-constitutional-reforms-in-turkey-a-focus-on-16-april-2017-referendum-introducing-presidentialism.html>, visited 12 October 2017.

23 B.E. Oder. ‘Turkey’s ultimate shift to a presidential system: the most recent constitutional amendments in details’, ConstitutionNet, available at <www.constitutionnet.org/news/turkeys-ultimate-shift-presidential-system-most-recent-constitutional-amendments-details>, visited 12 October 2017; S. Esen, ‘Analysis: The 2017 Constitutional Reforms in Turkey: Removal of Parliamentarism or Democracy?’, Blog of the IACL, AIDC, available at <iacl-aidc-blog.org/2017/03/14/analysis-the-2017-constitutional-reforms-in-turkey-removal-of-parliamentarism-or-democracy/>, visited 12 October 2017.

24 European Commission for Democracy Through Law (Venice Commission), ‘On the Amendments to the Constitution Adopted by the Grand National Assembly on 21 January 2017 and to Be Submitted to a National Referendum On 16 April 2017-Opinion No. 875/2017’, (Strasbourg: Council of Europe, 13 March 2017) para(s). 47, 55, 119, 127, 130 and so on, available at <www.venice.coe.int/webforms/documents/default.aspx?pdffile=cdl-ad(2017)005-e>, visited 12 October 2017.

25 T. Olcay. ‘Turkey’s Presidentialist Shift: An Anticonstitutional Amendment?’, Blog of the IACL, AIDC, available at <iacl-aidc-blog.org/2017/04/14/turkeys-presidentialist-shift-an-anticonstitutional-amendment/>, visited 12 October 2017.

26 Roznai, supra n. 2, p. 1.

27 Ibid., p. 8, fn. 52.

28 Ibid., p. 227.

29 Ibid., p. 23-37.

* Dr. Ali Acar, Cankaya University Law School (Ankara/Turkey) and visiting scholar at Osgoode Hall Law School, Canada.

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