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Philosophical Foundations of Constitutional Law$
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David Dyzenhaus and Malcolm Thorburn

Print publication date: 2016

Print ISBN-13: 9780198754527

Published to Oxford Scholarship Online: April 2016

DOI: 10.1093/acprof:oso/9780198754527.001.0001

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Constitutional Amendment and Political Constitutionalism

Constitutional Amendment and Political Constitutionalism

A Philosophical and Comparative Reflection

(p.95) 5 Constitutional Amendment and Political Constitutionalism
Philosophical Foundations of Constitutional Law

Rosalind Dixon

Adrienne Stone

Oxford University Press

Constitutional amendment procedures have been largely overlooked by political constitutionalists as a potential ‘answer’ to democratic objections to judicial review. This chapter explores what if anything may explain this, and in doing so considers three broad potential justifications: the practical unavailability of amendment as a means of democratic override; the idea that any supermajority requirement for the approval of an amendment is necessarily incompatible with democratic commitments to equality among citizens; and the idea that amendment procedures necessarily add too greatly to the overall length, or ‘prolixity’, of a constitutional document. The chapter suggests that each of these explanations depends on the existence of certain legal and political conditions which implies that questions as to the legitimacy of judicial review are best approached as ones of degree, rather than kind, and also ones informed by a variety of factors, including the availability of formal powers of constitutional amendment.

Keywords:   amendment, judicial review, legitimacy, democracy, Waldron

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