Constitutional Review of Constitutional Amendments: Protecting or Endangering Democracy? A Study on Constitutional Politics and Constitutional Review in Europe (1945–2016)

Does constitutional review of constitutional amendments contribute to the protection of modern democracies? Or is it endangering the people’s right of democratic self-determination? And: what explains whether constitutional or supreme courts behave more democracy-compatible or democracy-adverse? This paper examines these questions by analyzing 153 decisions on the constitutionality of constitutional amendments issued by European constitutional and supreme courts from 1945 until 2016. The following factors are analyzed: constitutional entrenchment clauses, the content of the cases, the empirical level of democracy, the politicization of the judges’ appointment, the fragmentation of the party system, the types of procedure, and post-socialist legacies. The paper shows that courts predominantly show judicial restraint, but the majority of decisions, where courts invalidated constitutional amendments, are cases of democracy-adverse judicial activism. Three factors mainly explain this pattern: the empirical level of democracy, the politicization of the judges’ appointment, and the fragmentation of the party system. Furthermore, it becomes visible that entrenchment clauses function as a catalyst of judicial activism, since in most cases, they provide the claimants and the courts the opportunities to review constitutional amendments.