Eternity as Judicially Created Doctrine

Abstract

This chapter focuses on implicit unamendability and looks at the spread of unconstitutional constitutional amendment doctrines. It discusses the understanding of unamendability as a necessary implication of liberal constitutions in general, whether supplementing or absent any formal eternity clause in the constitutional text. It examines arguments about why courts should recognize an unamendable constitutional core even where the constitution itself is silent on this matter. This chapter also investigates where to locate the elements of the constitutional core and how to restrain unamendability doctrines in order to prevent judicial overreach. It explains how judicially created unamendability is prone to both over- and under-reach in concrete adjudication. It reviews the birth of the basic structure doctrine in India and traces its global influence, as well as demands to develop unconstitutional constitutional amendment doctrines in response to democratic backsliding.