Constitutional Adjudication and Democracy Judicial Review of Constitutional Change: Defending Constitutions with

May courts review and strike down constitutional amendments that undermine constitutionalism? In the last two decades scholars have been constructing the theoretical base for this proposition by building upon arguments that there are substantive limitations to formal constitutional change. I suggest here that courts may already be implementing this view. Unconstitutional Constitutional Amendments There are many who support the view that there are substantive limits to constitutional amendments. Murphy supports the view that amendments that destroy or cripple the values of constitutional democracy would be invalid. He added that there are also limitations imposed by natural law, justice and right on the power to amend constitutions (Murphy 1995). Rawls opposed amendments that repeal core constitutional freedoms or violate core human rights and deny the basis of equality that he saw as the foundation of equal liberties (Kelbley 2004). Others have suggested that proposals that would deny legal protections or equal status to some class of people are impermissible (Mazzone 2005)2 Substantive limits on the power to amend constitutions expanded to include limitations implied by “universal ” agreements or jus cogens principles under international law, the evolving understanding of human rights (Samar 2008), and emerging international legal norms that address matters such as the separation of powers and constitutional amendment (Schnably 2008). or that the right to even-handed treatment and to privacy cannot be repealed or weakened by amendment (Graber 1995). Courts may be asked to intervene if amendment procedures violate constitutionally protecte