Is there such a thing as an unconstitutional constitutional amendment? And if so, does the judge have the power to declare that amendment unconstitutional?
The question seems nonsensical or paradoxical, “rather like asking whether the Bible can be unbiblical”. Yet, if it is primarily the preserve of constitutional theorists – think of the American debate about the constitutionality of a proposed flag-burning amendment – it is nevertheless an issue with practical implications, as witnessed in the recent Pringle case before the CJEU. Here, the Court was asked to assess the validity of a Treaty amendment by reference to the European Union’s (EU) own Treaties. The Court rejected the argument that it did not have jurisdiction and affirmed its power to review the validity of the amendment. Continue reading