Emergency Unamendability: Limitations on Constitutional Amendment in Extreme Conditions

Richard Albert & Yaniv Roznai

Should constitutions prevent their own amendment during a period of emergency? This question has long confronted constitutional designers around the world, and today continues to be a key question in the making of constitutions. We know from the body of current and historical constitutions that codified constitutional rules can be designed to disable the amendment process for the duration of the crisis, for better or worse. They can forbid constitutional actors from amending the constitution to make it more nimble in generating a response to the moment, just as they can bar constitutional actors from amending the constitution to exploit the crisis. Is this kind of restriction a good idea?

Think back to the September 11 attacks on the United States. President George W. Bush recorded the highest-ever popular approval for any president, reaching ninety percent, as Americans rallied around the flag and put their trust in him to protect them, their loved ones, and their country. Had President Bush and his team proposed a constitutional amendment they believed could help protect the country—for instance, an amendment to limit the Constitution’s due process protections for persons suspected of planning or executing the attacks—the amendment could well have passed despite the extraordinary difficulty of amendment in the United States. But should the amendment power have been available during this crisis?

Prohibitions on amendment in periods we can broadly label as “extreme conditions” raise critical questions for constitutional law and design. Extreme conditions include emergency, war, siege, regency, or other moments that heighten doubts about whether constitutional actors can deliberate with clarity in the face of extraordinary circumstances. Many constitutions prohibit amendments in these and other periods, yet there is surprisingly little scholarship on whether constitutional clauses prohibiting emergency amendments are worth adopting.