Four Unconstitutional Constitutions and their Democratic Foundations

The present fascination with the global phenomenon of an unconstitutional constitutional amendment has left open the question whether a constitution can be unconstitutional. To declare an entire constitution unconstitutional seems different in both kind and degree from invalidating a single amendment for violating the architectural core of a constitution, itself undoubtedly an extraordinary action. In this Article, I illustrate and evaluate four different conceptions of an unconstitutional constitution. Each conception draws from a different constitution currently in force around the world, specifically the Constitutions of Canada, Mexico, South Africa and the United States.

Despite their unconstitutionality in different senses of the concept, each constitution is nonetheless rooted in democratic foundations. The strength of these foundations, however, varies as to each.