The inconsistencies of the doctrine of unconstitutional constitutional amendments

Resumen

This article critically examines Yaniv Roznai’s influential doctrine of unconstitutional constitutional amendments (UCA), which aims to reconcile judicial review of constitutional amendments with democracy by grounding both amendment limits and judicial review in the people’s constituent power. Through an analysis of Chile’s experience with an imposed constitution and its subsequent democratic transformation through amendments, the article demonstrates two fundamental problems with Roznai’s theory. First, the UCA doctrine proves inadequate for cases where amendment power serves to overcome an authoritarian past, as it cannot properly conceptualize amendment power’s democratic enabling function. Second, the article reveals how Roznai’s theoretical construction undermines its own foundations: his normative-ideal understanding of constituent power contradicts the political concept he claims to adopt, while his theory of delegation neglects amendment power’s enabling dimension and his defense of judicial review of implicit limits contradicts the very theory of constituent power it purports to protect. The article concludes that Roznai’s attempt to immunize judicial review from the counter-majoritarian difficulty ultimately fails due to these internal contradictions.