Voters keep primary constituent powers

The argument

The charge that an unamendable constitution is undemocratic assumes that amendment is the only route by which a people can change its fundamental law. This argument denies that assumption, and the distinction it relies on is between two kinds of authority. Primary constituent power is the power to make a constitution — the capacity of a people to establish the basic order under which it will live. The power of amendment operates inside an existing constitution, according to rules that constitution itself lays down. Unamendability restricts the second. It does not and cannot touch the first. Voters therefore retain what matters democratically even where the text in front of them cannot be altered. An incoming democratic government, acting at the behest of the public, can draw up a new constitution altogether. The people's ability to determine their own fundamental law survives intact; what has been closed off is one particular mechanism for exercising it, namely piecemeal revision of the document currently in force. Seen this way, unamendability is a constraint on a procedure rather than on popular sovereignty. It says that this constitution may not be edited, not that this people may never constitute itself differently. A generation that finds the settlement it inherited unacceptable is not trapped by it: it retains the more fundamental power the earlier generation used, and may use it in the same way. It follows that the inability to amend an existing constitution does not mean democratic constitutional change cannot take place in any capacity — only that it must take the more demanding and deliberate form of replacement rather than the easier form of revision. Since voters keep their primary constituent powers throughout, unamendable constitutions are compatible with democracy.

Context

Constituent powers can be separated into two broad categories: primary and secondary powers. Primary constituent powers are the ability to draw up a new constitution, while secondary constituent powers are those which allow for the amendment to an existing constitution.

Premises

Counter-arguments

Overcoming an unamendable constitution and necrocracy by drawing up an entirely new constitution is a waste of time and money and opens the door to democratic instability. If a government has to throw out all aspects of an existing constitution and start again from scratch to make a minor constitutional amendment, the process of updating a constitution would come with substantial risk. Institutions could be undermined, the public could lose faith in the democratic process, and fundamental human rights could be at stake. This leaves an unacceptable margin for abuse in the amendment process. By undermining human rights, democratic institutes and political stability, unamendable constitutions go against the core values of democracy.

Rejecting the premises

[Rejecting P3] Drawing up a new constitutions increases instability and leaves a nation vulnerable to human rights erosions and abuse of powers. Democracy values political stability, human rights protections and democratic processes. Because unamendable constitutions threaten these values, they must be considered undemocratic.