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Unconstitutional constitutional
amendments in the case study
of Colombia: An analysis of the

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justification and meaning of
the constitutional replacement
doctrine
Carlos Bernal*

Through a series of judgments, the Colombian Constitutional Court has developed the so-called
constitutional replacement doctrine. This doctrine aims to justify the power of the Court to
review the content of constitutional amendments despite the fact that the Constitution only
grants the Court the power to review constitutional amendments exclusively on procedural
grounds. This article aims to explain and assess the constitutional replacement doctrine. It
contends that the justification provided by the Court is not able to overcome the democratic
challenge that can be raised against the doctrine. Nonetheless, this article claims that the
doctrine is justified within the context of hyper-presidential political systems such as that of
Colombia. In support of this claim, it offers an alternative justification by means of a concep-
tual and a normative argument, and shows that they form the basis for an appropriate theory
concerning the meaning of “constitutional replacement”.

1. Introduction
Through a series of judgments, beginning in 2003, the Colombian Constitutional
Court has developed and endorsed the so-called constitutional replacement doctrine.

* Macquarie Law School, Sydney, Australia. Email: Carlos.Bernal-Pulido@mq.edu.au. This paper was
presented at the Conference hosted by the Colombian Constitutional Court in Bogota on the occasion
of the twentieth anniversary of the Colombian Constitution. I should like to thank Robert Alexy, Mark
Tushnet, Vicky Jackson, Joel Colon-Rios, Rodrigo Uprimny, Justice Juan Carlos Heano (then Chief
Justice of the Colombian Constitutional Court), Justices Humberto Sierra and Jorge Palacios, both of
the Colombian Constitutional Court, Justice Raul Bertelsen (Chief Justice of the Constitutional Court
of Chile), and María José Viana for valuable comments, and Ashleigh Whittaker and the copy-editor
at OUP for suggestions on English style matters.

I•CON (2013), Vol. 11 No. 2, 339–357 doi:10.1093/icon/mot007

340 I•CON 11 (2013), 339–357

This doctrine aims to justify the power of the Court to review the content of consti-
tutional amendments. At first glance, the Colombian Constitution does not grant this
power to the Court. Indubitably, articles 241 and 379 of the Constitution empower
the Court to review constitutional amendments. Nonetheless, according to these art­
icles, the Court can declare that an amendment is unconstitutional if and only if there
is a breach of the rules establishing the amendment procedure. Supposedly, this does
not include the power to review the content of the amendment.

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The constitutional replacement doctrine seeks to circumvent this constraint by
means of a five-tiered argument. The first premise states that the power to review
the compliance with amendment procedures comprises the power to review the
competence of the authority issuing the amendment. The second premise asserts
that the power to amend the constitution does not imply the power to replace it,
but only to modify it. The third statement of this argument, which follows from the
first and the second premises, is that the Court has the power to review whether the
amending authority is in fact only modifying, rather than replacing the constitu-
tion. The fourth element is the premise that only an analysis of content allows the
Court to determine whether the constitution has been modified or replaced. The
final element is the conclusion that the power to review whether the constitution
has been replaced implies the competence to review the content of constitutional
amendments.
The constitutional replacement doctrine gives rise to at least two puzzles and a
challenge. The first puzzle concerns the justification of the second premise of the
argument, whereby the power to amend the constitution does not imply the power
to replace it. There are no eternity clauses in the Colombian Constitution that, as
does article 79.3 of the German Basic Law, would impose constraints on the scope
of what the power to amend can decide.1 If the constitution does not constrain the
amending power in this manner, then it must be questioned whether there is any
justification for the claim that this power does not comprise the power to replace
the constitution. This represents what will be further referred to as the justification
puzzle.
A second puzzle concerns the concept of constitutional replacement. There can be
two kinds of disagreements about this concept. On the one hand, there can be differ-
ent views on the meaning of “constitutional replacement.” On the other hand, even
if there were agreement on the meaning of this concept, there can be different views
as to whether a specific amendment amounts to a constitutional replacement. There
is no unified view as to what necessary and sufficient conditions an amendment must
satisfy for it to be considered a constitutional replacement, as opposed to a mere modi-
fication of the constitution. It will be hereinafter referred to this as the meaning puzzle.
Finally, there is a challenge that is linked to the meaning puzzle and arises from
the third element of the argument, according to which the Court has the power

1
Art. 79.3 states that: “Amendments to this Basic Law affecting the division of the Federation into Länder,
their participation on principle in the legislative process, or the principles laid down in Articles 1 and 20
[containing a catalog of constitutional rights] shall be inadmissible.”
 Unconstitutional constitutional amendments in the case study of Colombia 341

to review whether the amending authority is actually modifying, but not replac-
ing, the constitution. The exercise of this power implies that the views of the nine
non-elected judges of the Constitutional Court, with regards to the concept of con-
stitutional replacement, may outweigh the decisions made by qualified parliamen-
tary majorities (as required by the amending procedures), or even the votes of the
majority of citizens who, when appropriate, participate in these procedures. Thus,
the question is whether the exercise of this power can be considered legitimate.

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This question expresses what will be hereinafter referred to as the democratic
challenge.
This article aims to provide answers to the justification and the meaning puzzles and
to the democratic challenge. This article contends that the justification of the replace-
ment doctrine provided by the Colombian Constitutional Court, which grounded this
doctrine in the distinction between original and derivative constituent powers, is not
able to overcome the democratic challenge. Nonetheless, the claim of this article is that
the replacement doctrine is justified within the context of hyper-presidential political
systems, such as that of Colombia. To support this claim, this article advances two
interlocking arguments—conceptual and normative—and show that, taken together,
these arguments form the basis for an appropriate theory concerning the meaning of
“constitutional replacement.”
This article is divided into three sections. Section 1 explains the constitutional
replacement doctrine. It also gives details regarding the justification of this doctrine
provided by the Constitutional Court and the way in which the Court has applied it
by means of the so-called replacement test. Section 2 explicates the democratic chal-
lenge and why neither the Court’s justification nor the proposed test can overcome it.
Finally, section 3 introduces an alternative theory on the replacement doctrine and
shows how this theory can resolve the justification and meaning puzzles and sur-
mount the democratic challenge.

2.  The development of the constitutional replacement

doctrine
The Constitutional Court first referred to the constitutional replacement doctrine in its
judgment C-551/2003.2 Along with the statement of the doctrine, the Court offered
a justification for it and outlined some ideas concerning the kind of judicial review
required by this doctrine. The Court ruled that the power to amend the constitution
comprises the power to introduce changes to any article of the constitutional text.
Nonetheless, these changes can neither imply a derogation of the constitution nor its
replacement by a different one.

2
The object of review was an act calling for a referendum. The referendum was about several issues con-
cerning the structure of the Congress and of the Public Administration, and the management of public
funds. As such, the act did not introduce any changes to the Constitution. It was the first part of a two-
step amendment process, of which the referendum was the second step.
342 I•CON 11 (2013), 339–357

The Court justified this assertion mainly on the basis of the distinction between
original and derivative constituent powers.3 The point of departure of this distinction
is the concept of constituent, or constitution-making, power. Carl Schmitt famously
championed this concept,4 derived from the distinction between constituent and con-
stituted powers by Sieyès.5 The distinction between original and derivative constituent
powers can be traced back to Roger Bonnard, a French constitutional scholar. In a
paper published in 1942,6 he introduced the distinction between original and insti-

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tuted constituent powers by elaborating on analyses previously presented by Carré de
Malberg and Burdeau.7 According to Bonnard, the original constituent power exists
outside the constitution and without any prior constitutional authorization. This
power manifests itself in the creation of a new state or in a revolution leading to the
derogation of the existing constitution. By contrast, the instituted constituent power
exists only in virtue of a constitution that establishes it for amendment purposes.
Thus, the instituted constituent power is to be exercised within the scope of a legal
competence. In his Droit constitutionnel, published in 1949, George Vedel replaced the
name “instituted constituent power” with “derivative constituent power,” preserving,
however, the meaning of the concept.8
In line with these theoretical developments, the Constitutional Court stated that the
most salient feature of this distinction is the following: while the original constituent
power knows no legal constraints, the amending power, which is a derivative constitu-
ent power, can only be exercised under the conditions determined by the Constitution.
The latter claim is trivial in the sense that the Constitution foresees precise steps required
for the exercise of the derivative constituent power. According to the Court, if one is to

3
The Court invoked two other arguments supporting this doctrine. The first argument was that the
Constitution did not grant the amending power an explicit competence to replace the Constitution, and
the constituted powers can do only what they are explicitly empowered to do. This is true. However, a
correlative argument which, in all fairness, should be accepted, undermines the replacement doctrine.
Namely, the Constitution did not grant the Constitutional Court an explicit competence to review whether
the Constitution has been replaced by an amendment, either. The second argument is that “amend-
ment” does not imply “replacement.” Every amendment should preserve the identity of the Constitution.
Nevertheless, strictly speaking, every amendment necessarily modifies the identity of the Constitution.
There is no amendment without modifying the identity of the Constitution, for the Constitution is never
the same before and after the amendment. Moreover, as this article will show, the Court did not explain
the difference between an amendment and a replacement.
4
Carl Schmitt, Constitutional Theory 125–135 (2008).
5
Emmanuel Joseph Sieyès, What is the Third Estate? 58 (1963). Sieyès claimed that the constituent power is
the nation and the nation is not bound by the law. “It is the source of all legality.”
6
Roger Bonnard, Les actes constitutionnels de 1940 [The Constitutional Acts of 1940], Revue du Droit Public
48 (1942).
7
In 1922, Carré de Malberg had presented the distinction between the constituent power within the
framework of the establishment of the first constitution of the state, on the one hand, and within the
framework of a state already formed, on the other. See Raymond Carré De Malberg, Contribution à la théorie
générale de l’état [Contribution to the General Theory of the State], Vol. II, 489–490, 492–495 (1922).
Moreover, in 1930, George Burdeau explained the difference between constituent power in the strict
sense of the word and amending power. See George Burdeau, Essai d’une théorie de la révision des lois consti-
tutionnelles en droit français [Essay of a Theory of Judicial Review in French Law] 79 (1930).
8
Georges Vedel, Droit constitutionnel [Constitutional Law] 115–116 (1949).
 Unconstitutional constitutional amendments in the case study of Colombia 343

argue from this premise, it follows that the derivative constitutent power has neither
authority to derogate the Constitution nor to replace it with a new one. However, this is
a clear case of a non-sequitur. This conclusion is unwarranted for it is conceptually pos-
sible for the derivative constituent power to observe the procedural requirements and,
at the same time, derogate the Constitution or replace it with a new one.
Finally, the Constitutional Court did not spell out the features of the judicial
review implied in the constitutional replacement doctrine. The Court only stated that

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this review ought to take into account the principles and values underpinning the
Constitution and the so-called constitutional block, that is, the block of norms belong-
ing to the international human rights treaties ratified by Colombia.
In the judgment C-1200/2003, the Court introduced three clarifications to the
embryonic formulation of the constitutional replacement doctrine.9 First, that this
doctrine cannot be used to label a constitutional clause as eternal. Second, that there
can be total or partial constitutional replacements. An amendment is a partial consti-
tutional replacement if it is of great “transcendence and magnitude” for the system.
According to the Court, an example of it would be an amendment establishing a mon-
archy. The third clarification was that the plaintiff has the burden to prove that the
amendment is a replacement of the constitution.
In the judgment C-970/2004, the Constitutional Court explained for the first time the
so-called replacement test.10 This test aims to determine the meaning of the concept of
replacement and to guide the Court in determining whether an amendment is a partial
constitutional replacement. The test has the structure of a subsumption whose major
premise is the following rule: a constitutional amendment is a constitutional replacement
if it replaces an element defining the identity of the constitution (hereinafter “identity
element”). The minor premise is the assertion that a concrete constitutional amendment
replaces an identity element. If this condition is met, then it follows that the amendment
is a constitutional replacement.11 However, the Court neither explained the concept of
“identity element” nor provided the criteria for determining if a specific constitutional
rule, principle, or institution establishes, implies, or represents an identity element.

9
The object under review was a constitutional act, that is, an act by means of which the Congress amended
the Constitution. This act empowered the president to amend various laws with the purpose of adjusting
them to a new adversarial criminal system that had been adopted at that time.
10
The object of review was again a constitutional act empowering the president to amend various laws
with the purpose of adjusting them to the new adversarial criminal system.
11
In logical notation, the structure of the replacement test is as follows:
(1) (x)(RIEx → CRx)
(2) RIEa
(3) CRa       MP (1, 2) 
This formula corresponds to the structure of a syllogism, namely, it involves the movement from a major
premise and a minor premise to a conclusion. The major premise (1) is a general rule. According to this
rule, the Constitutional Court ought to label as constitutional replacement (CR) every amendment (x)
meeting the condition of replacing an identity element (RIE), that is, an element defining the identity of
the Colombian Constitution. The minor premise (2), meanwhile, consists in the assertion that an amend-
ment (a) meets the condition mentioned in the antecedent of the general rule (1). Finally, the conclusion (3)
constitutes a particular rule, which follows by modus ponens (MP) from the major and the minor premises.
According to this rule, the amendment (a) ought to be considered as a substitution of the constitution (CRa).
344 I•CON 11 (2013), 339–357

In the judgment C-1040/2005, the Constitutional Court enhanced the replace-

ment test.12 The Court replaced the concept of identity element with the concept of
essential element and, by doing so, transformed the original test into a seven-tiered
test comprising the following steps: (1) stating what is the essential element of the
constitution that is at stake; (2) stating how the essential element underpins several
constitutional provisions; (3) explaining why the element is essential; (4) providing
evidence that the content of the element cannot be reduced to only one constitutional

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provision; (5) demonstrating that labeling an element as essential does not amount to
labeling one or more constitutional clauses as eternal; (6) proving that the essential
element has been substituted by a new one; and (7) explicating that this new element
contradicts the essential element or is totally different from it such that the new ele-
ment is incompatible with other essential elements of the constitution.
Indubitably, this seven-tiered test improves on the original replacement test. In step
3, the Constitutional Court has the burden to prove that the element being replaced is
essential. This means that the Court should support the minor premise of the original test
(RIEa) with evidence showing that the amendment (a) is actually replacing an essential
element of the constitution. Steps 7, 2, and 4 imply some guidance on how to provide
the burden of proof. Step 7 presupposes the claim that an element is essential if the new
element replacing it, that is, the content of the amendment, is incompatible with other
essential elements of the constitution. This statement is ambiguous. In a weak reading,
it merely expresses a property that is likely to be found in elements replacing essential
elements of the constitution. In a strong reading, it expresses a necessary condition for
using the concept of essential element. The strong reading seems more plausible only if
“incompatibility” is also interpreted in a strong sense, namely, as the impossibility for the
various elements to be valid under the same constitution and at the same time. A mere
tension or collision between the new element and other essential elements could not
lead to the conclusion that the constitution has been replaced with a new one because
tensions or collisions are normal in every constitutional system. Finally, steps 2 and 4
imply accepting a condition necessary for an element to be considered essential, namely,
that it underpins not only one but several constitutional provisions.
Nonetheless, the seven-tiered test gives rise to at least one concern: it is not clear
what an essential element is. For this reason, there can be disagreement regarding the
question as to whether an element is essential or not. The test does not provide any
reliable criterion that can be used in adjudicating between competing intuitions con-
cerning the concept of essential element and its particular applications. In this sense,
the test is intuitionist in nature. The guidance offered by the test is of very little help.
Contrary to what the Court claims, there are essential elements that are to be found in
only one constitutional provision. For example, the freedom of expression guaranteed
by article 20 is essential to the system of deliberative democracy entrenched in the
Colombian Constitution.13 Thus, underpinning several constitutional provisions is not

The object of review was a constitutional act derogating the prohibition of presidential reelection. The
12

act allowed the immediate reelection of the president and commanded the Congress to enact a law for the
purpose of setting in place some electoral guarantees for the presidential campaign.
 Unconstitutional constitutional amendments in the case study of Colombia 345

a necessary condition. Nor is it a sufficient condition, for there are elements underpin-
ning several constitutional provisions that are not essential. An example of this was
precisely the set of constitutional elements providing the foundation for the inquisito-
rial criminal system originally established by the constitution. The Congress replaced
this system with an adversarial system by means of constitutional amendments, and
the Court, with good reasons, did not consider that this amendment represented a
partial constitutional replacement. Moreover, the criterion according to which an ele-

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ment is essential if the new element substituting it is incompatible with other essential
elements of the constitution is question-begging and implies vicious circularity. Using
this criterion implies prior knowledge about what are the other essential elements of
the constitution. This, in turn, implies prior knowledge about what constitutes the
concept of essential element. And that is precisely the question being asked.
Despite these problems, the Constitutional Court has been using the seven-tiered
test to declare the unconstitutionality of constitutional amendments. In the judgment
C-1040/2005, the Court used the test in order to support two holdings. The Court held
that an amendment granting the possibility of only one presidential reelection and, at
the same time, empowering the Congress to enact a law that guarantees all candidates
equal rights in the electoral campaign, did not replace the principles of the separation
of powers, alternative exercise of political powers, or electoral equality. However, for
the first time, the Court also declared that an amendment clause was unconstitutional
because it violated the constitutional replacement doctrine. The clause in question
set out that, if the Congress failed to enact the law of electoral guarantees within two
months, the Council of State, that is, the highest administrative court, ought to enact
a regulation granting equality of rights during the elections. Notwithstanding the fact
that the Court had previously clarified that an exception or a constraint to a funda-
mental principle of the constitution was not a partial constitutional replacement,14
it determined that this empowerment of the Council of State replaced the principle
of the separation of powers, which is an essential element of the constitution, and,
consequently, ought to be considered as a constitutional replacement.
In the judgment C-588/2009, the Constitutional Court used the seven-tiered test
again and declared for the second time that an amendment was a constitutional
replacement. The amendment under review automatically included certain category
of temporary employees of the Public Administration in the administrative career. As
a consequence of the amendment, they gained tenure without passing the necessary
exam of merits. The Court determined that this amendment replaced two essential ele-
ments of the constitution, namely, the principle of equality and the principle of merit,
a constitutional principle of the administrative career.
Finally, in the judgment C-141/2010, the Court declared that an amendment
granting the possibility of a presidential reelection to a third term was a constitutional

13
Art. 20 of the Colombian Constitution states that: “Every individual is guaranteed the freedom to express
and diffuse her thoughts and opinions, to transmit and receive information that is true and impartial, and
to establish mass communications media. The mass media are free and have a social responsibility. The
right of rectification under equitable conditions is guaranteed. There will be no censorship.”
14
Constitutional Court, Judgment C-1200/2003 (Colom.).
346 I•CON 11 (2013), 339–357

replacement. According to the Court, due to certain aspects of the constitutional

design concerning the appointment of high court judges and members of other state
agencies, such as the Central Bank, to allow a second presidential reelection would
mean replacing the principle of checks and balances. It would also replace the prin-
ciples of alternated exercise of political power, the equality among presidential can-
didates, and the generality of laws, for this was an ad hoc constitutional amendment
instigated by the then Colombian President Alvaro Uribe with the purpose of making

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him eligible to run for president for the third time.
In this judgment, the Constitutional Court also established that article 376 of
the Colombian Constitution allows for only one possibility of legitimate total con-
stitutional replacement.15 This is the scenario in which the people empower a
Constitutional Assembly to enact a new constitution.16

3.  The democratic challenge to the constitutional

replacement doctrine
These Constitutional Court decisions, and the way in which the Court accounts for
the meaning and justification of the constitutional replacement doctrine gives rise to
puzzlement. Let us first consider the issue concerning the meaning of the doctrine.
The Constitutional Court’s application of the constitutional replacement doctrine is
subject to a number of questions: Why does an amendment granting the possibility of
presidential reelection to a third term replace the constitution, while it is held that an
amendment which allows only two terms does not? Why is a relatively minor change
concerning a specific regulatory decision, namely, the incorporation of temporary pub-
lic employees into the administrative career, considered as a constitutional replacement?
It would be easy to provide plausible answers to these questions if there were
always shared criteria to understand the claim that the Court employs to explain the
meaning of its doctrine, that is, that there is a constitutional replacement when and
only when an essential element of the constitution is being replaced. Shared crite-
ria for the understanding of the concept of essential element and its application are
sometimes lacking. Thus, there is sometimes a reasonable disagreement as to what
are the essential elements of the constitution and whether a specific element, which
is relevant in a concrete case, ought to be considered essential. This disagreement is

15
Art. 376 reads as follows: “By means of a law approved by the members of both chambers, Congress
may stipulate that the people decide by popular vote if a Constituent Assembly should be called with the
jurisdiction, term, and members determined by that same law.”
16
The Colombian Constitutional Court has used the constitutional replacement doctrine twice recently. In the
Judgment C-1056/2012 (Colom.) of December 6 2012, the Court declared that an amendment prescribing
that rules about conflict of interests of congressmen would not be applicable in the discussion and passing of
constitutional amendments was a constitutional replacement. The Court held that this amendment infringed
basic constitutional principles concerning the respect of public morality in a democracy. Furthermore, in
the Judgment C-10/2013 (Colom.) of January 23 2013, the Court declared that an amendment modifying
certain rules concerning the distribution of income from mining taxes between administrative regions was
not a replacement of the constitution. Here, a clarification is needed. As of January 2013, the Court has not
published a full text of these judgments but only press releases concerning both of them.
 Unconstitutional constitutional amendments in the case study of Colombia 347

analogous to the disagreement regarding the correct interpretation of constitutional

rights. For this reason, the same objections that are raised against judicial supremacy
in the interpretation of the constitution can be raised against judicial supremacy in
the interpretation of the concept of essential element. These objections would address
the following claims: that the Constitutional Court should be the supreme interpreter
of the essence of the constitution; that it should have the final word in determining
what are the essential elements of the constitution; and that the decisions of the

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Court in that regard should be binding on all public powers and citizens.
Judicial supremacy in the standard exercise of constitutional interpretation is chal-
lenged on the basis of well-known democratic arguments. By privileging the views
of a small number of unelected and unaccountable judges regarding the meaning of
constitutional provisions, judicial supremacy “disenfranchises ordinary citizens and
brushes aside cherished principles of representation and political equality in the final
resolution of issues about rights.”17 This kind of judicial supremacy implies “a sub-
stantial restriction on the power of the people to govern themselves.”18 When there
are various competing and reasonable interpretations as to the meaning of consti-
tutional provisions, “[w]hy should the Court’s reasonable interpretation prevail over
the legislature’s (also) reasonable one?”19 The Court can be considered as an unjustly
empowered elite and its supremacy as an undesired aristocratic element in the demo-
cratic system.20 If the constitution was made by the people, then the people themselves
and not the Court should have supremacy in interpreting the constitution and their
interpretations should be ultimate and be capable of trumping not only all other inter-
pretations but even the constitutional text.
This democratic challenge becomes even stronger if it is raised against judicial
supremacy in determining the essential elements of the constitution. Let us grant for
a moment that the constitutional replacement doctrine is correct and that it is widely
accepted by the society in which it operates. Still, given that the constitution was created
by the ­people, the people themselves, and not the Court, should have the authority to
determine what are the essential elements of the constitution. If the people themselves,
directly or through their representatives, have agreed to pass a constitutional amend-
ment, it is because they have decided that the amended element is not an essential
­element. This decision should be final. Similarly, if the people themselves, and not the
Court, were to have the ultimate authority to interpret the more or less vague consti-
tutional provisions granting constitutional rights and powers, there is more reason to
believe that they should also have the supreme authority to determine the meaning of
a concept that is even more abstract and vague, namely, the concept of “essential ele-
ment.” In cases of reasonable disagreement, the views of the people as to what the essen-
tial constitutional elements are should prevail over the views of the judges of the Court.

17
Jeremy Waldron, The Core of the Case against Judicial Review, 115 Yale L.J. 1346, 1353 (2006).
18
Mark Tushnet, Weak Courts Strong Rights: Judicial Review and Social Welfare Rights in Comparative
Constitutional Law x–xi (2009).
19
Id. at 21.
20
Larry Kramer, The People Themselves: Popular Constitutionalism and Judicial Review 7 (2004).
348 I•CON 11 (2013), 339–357

Moreover, some rebuttals to the democratic challenge to judicial supremacy can-

not be used in defending judicial review of the content of constitutional amend-
ments. This happens, for instance, with Schauer’s account of the modest constitution.
According to Schauer, the concept of constitution should be interpreted in a modest
way, as “a series of rules that impose second-order constraints on the first-order policy
preferences of the people and of their elective representative and executive officials.”21
These second-order constraints serve the long-term and deeper values of the people.

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Within this framework, judicial supremacy is a justified external enforcement of sec-
ond-order constraints whereby it aims to protect the long-term interests of the people
from their own short-term desires.22 The judicial interpretation of these second-order
constraints should prevail over the interpretation by the people in cases of conflict
with the short-term desires. The people, as a result of having the short-term desires,
are in the middle of a conflict of interest. They do not have enough “mental separa-
tion” to be able to consider the issue with fairness and impartiality.23
Even if, for the sake of the argument, we admit that this is a plausible response to
the democratic challenge concerning the interpretation of the constitution, the use of
Schauer’s concept of the modest constitution in the case of a judicial review of the con-
tent of constitutional amendments could not surmount this challenge. Constitutional
amendments are indicative of the changes in the long-term interests of the people and,
as a consequence, they modify the second-order constraints. Schauer’s argument does
not encompass any reason why the people could not change their long-term interests.
If the people have the authority to decide their long-term interests and values and to
guarantee them by means of the enactment of the constitution, they consequently
have the power to change their mind concerning those interests and values, thus their
decisions about it should be final.
This leads us to a second puzzle regarding the justification of the constitutional
replacement doctrine. The following question expresses this puzzle: even if objective
criteria are available to determine the essential elements of the constitution, why
could they not be replaced by constitutional amendments?
It is worth remembering that a basic statement in the justification of this doctrine is
the claim that the power to amend the constitution is a derivative constituent power.
The exercise of this power has certain constitutional constraints. There is no doubt
that this power ought to follow the amending procedures established by the constitu-
tion. However, the Constitutional Court draws from this premise the conclusion that
the constitution sets another implicit constraint on the derivative constituent power,
namely, the lack of competence to replace the essential elements of the constitution.
As stated before, this conclusion is unwarranted, for it is conceptually possible for the
derivative constituent power to observe the procedural requirements, and therefore
be compliant with the constitutional constraints, with the purpose of replacing an
essential element.

21
Frederick Schauer, Judicial Review and the Modest Constitution, (92) 4 Cal. L. Rev. 1045, 1046 (2004).
22
Id. at 1057.
23
Id.
 Unconstitutional constitutional amendments in the case study of Colombia 349

Quoting the judgment C-551/2003, Colón-Rios has plausibly suggested that a

further justification for the so far unwarranted claim concerning the lack of compe-
tence of the derivative constituent power to replace the constitution can be drawn
from Carl Schmitt’s concept of constituent power or constitution-making power
(Verfassungsgebende Gewalt).24 According to Schmitt, the constitution-making power,
which is the foundation of validity of the constitution, is a “political decision” or a
“political will” about the “type and form” of a political being.25 This political will is

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legally unconstrained. It defines the type and form of the political being by making
some fundamental political decisions about the basic structural elements of the con-
stitution, such as institutionalizing a republic, a unitary state, and a liberal democracy.
Constitutional amendments cannot change these fundamental political decisions for
only the constituent power can make such decisions and the amending power is a
mere constituted power. The amending power can introduce changes in the constitu-
tion, as Schmitt claims, “only under the presupposition that the identity and continu-
ity of the constitution as an entirety is preserved.”26
It is possible to enhance the justification of the constitutional replacement doctrine
offered by the Constitutional Court with the help of this argument by Carl Schmitt. The
derivative constitutive power lacks competence to replace the constitution because it
lacks the competence to modify the fundamental political decisions about “type and
form” of the political entity created by the original constituent power. These funda-
mental political decisions would determine the essential elements of the constitution.
However, even with the enhancement, this justification, grounded in the concept of
constituent power, is contestable. Why does the power to amend the constitution not
comprise the power to change fundamental political decisions? If the foundation of
the constitution is only a contingent social fact, namely, the result of a political deci-
sion, why should it be impossible to change the essential elements of the constitution
by means of another contingent social fact, that is, a political decision made by means
of a constitutional amendment?
The Court’s justification is not able offer a plausible answer to these conundrums.
In fact, it is very easy to see the weakness of this kind of justification if we take into
account our intuitions concerning one example and a thought experiment. First, the
people voted three times during the process of enacting of the Colombian Constitution.
The highest popular participation was achieved in the election of the members of the
National Constitutional Assembly in which 3,710,557 people voted. The National
Constitutional Assembly enacted the Colombian Constitution of 1991. Let us grant,
again for the sake of the argument, that the Constitutional Court is right when it
claims that allowing a third presidential term amounts to a constitutional replace-
ment because it replaces an essential element, namely, the principle of checks and

24
Joel Colón-Ríos, Carl Schmitt and Constituent Power in Latin American Courts: The Cases of Venezuela and
Colombia, 18(3) Constellations 365 (2011).
25
Schmitt says that the constituent power is “the political will, whose power or authority is capable of mak-
ing the concrete, comprehensive decision over the type and form of political existence.” See Schmitt, supra
note 4, at 125.
26
Id. at 150.
350 I•CON 11 (2013), 339–357

balances. Nevertheless, it cannot be disregarded that, arguably, over 5,000,000 p ­ eople

endorsed the bill at the origin of this constitutional amendment. Thus, it should be
questioned why an essential element of the Constitution, which was decided upon by
the ­representatives of 3,710,557 citizens, cannot be changed by a decision grounded
in the signatures of a greater number of citizens, namely, 5,000,000.
Second, let us imagine that the original constituent power approves an imperfect
constitution, which establishes a system of political liberalism but does not recognize

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equality among citizens, but instead institutes a system of castes. Suppose that, some-
time in the future, egalitarian ideas become popular and the people promote an amend-
ment, introducing a constitutional provision guaranteeing the right to equality, such
as article 13 of the Colombian Constitution.27 This amendment would alleviate some
of the conflicts created by the clash between the castes system and other principles
of political liberalism. For reasons of coherence and justice, we might be inclined to
argue that the Constitutional Court cannot declare this amendment as unconstitu-
tional despite the fact that it clearly changes a fundamental political decision and,
in this way, the identity of the constitution. Why should constitutional amendments
that change essential elements of the constitution with the purpose of improving the
political system and making it more just, be declared unconstitutional only because
of a contingent fundamental political decision of our ancestors (many of whom are
already dead, and thus have no actual interest)? Why can we not, together, acting as
the people, exercise the derivative constituent power to update and improve the consti-
tution, even in its essential elements, without the hurdles and the risks associated with
a revolution or electing another Constituent Assembly?

4.  A Theory of constitutional replacement

The conclusions drawn from the example of the third presidential term and the thought
experiment of the caste system are persuasive. Yet, our intuitions would be different if
we were to modify these scenarios and conduct another thought experiment.
Let us imagine that a president is elected according to the procedures of the actual
Colombian Constitution. Let’s say that this president has received strong support
from the people. On a visit to a neighboring country, he gets political inspiration. He
comes to believe that deliberative democracy, that is the political system entrenched
in the constitution, is just an imposition of American imperialism. Thus, he decides to

27
Art. 13 of the Colombian Constitution reads as follows:

All individuals born free and equal before the law and are entitled to equal protection and treatment by
the authorities, and to enjoy the same rights, freedoms, and opportunities without discrimination on the
basis of gender, race, national or family origin, language, religion, political opinion, or philosophy.
 The state will promote the conditions necessary in order that equality may be real and effective
will adopt measures in favor of groups which are discriminated against or marginalized.
 The state will especially protect those individuals who on account of their economic, physical, or
mental condition are in obviously vulnerable circumstances and will sanction any abuse or ill-treatment
perpetrated against them.
 Unconstitutional constitutional amendments in the case study of Colombia 351

instigate a constitutional amendment.28 Among other things, the amendment upholds

the democratic regime but qualifies it. The new constitutional provision should read:
“socialist democracy.” Further, the presidential term is extended to seven years and
the possibility of an indefinite number of presidential terms is granted. Since mea-
sures adopted by central banks are unpopular nowadays, the amendment empowers
the president to control the most important financial decisions made by the Central
Bank. It also empowers the president to appoint judges of the highest courts on the

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basis of their potential contribution to enhance socialist democracy. Naturally, the
development of this kind of democracy can be difficult if there is no agreement about
it. For that reason, the amendment empowers the president to control the mass media
so as to ensure that the information they communicate is faithful to the constitutional
ideals. Finally, for the purpose of guaranteeing that socialist democracy can spread
throughout the whole territory of the state, the amendment constrains the autonomy
of individual regions and cities, and pronounces the president as the chief of gover-
nors and mayors.
Since the creation of the Republic, the Colombian political system has always been
hyper-presidential. The Constitution itself establishes an imbalance of powers between
the president and the Congress in favor of the former. This historical pre-eminence of
the president, which possesses democratic legitimacy throughout Latin America, given
that he is elected directly by the citizens in elections that are independent from the elec-
tions of the Congress, has increased as a result of the loss of structure in the party
system. Following the enactment of the Constitution, the political arena opened up to
other political groups and movements, in addition to the traditional political parties.
This opening up has led to an unsystematic composition of Congress majorities. It is no
secret that majorities fluctuate in accordance with the political vicissitudes resulting
from the practice of “clientelismo.”29 The consequences of the unsystematic compo-
sition of the Congress have not only been reflected in the well-known delegalization
or transfer of legislative competence from the Congress to the Public Administration,
but also in the Congress’s capitis diminutio concerning political control. Not even the
implantation of strategies for political control which derive from parliamentary sys-
tems, such as the vote of censure or questions to government, has succeeded in the
toning-down of hyper-presidentialism. Each government has managed to handle the
fluctuating political forces in the Congress to elude checks on public policies.
Under these conditions it is not unlikely that a president can align the necessary
majorities in the Congress in order to pass the amendment described in our thought
experiment.30 Faced with this possibility, our intuition would tell us that something

28
This imaginary amendment encompasses some of the changes to the Constitution of Venezuela proposed
by President Chavez in 2007.
29
This is the practice of obtaining votes with promises of government post or other privileges.
30
The parliamentary majority required by art. 375 of the Colombian Constitution in order to pass a consti-
tutional amendment is not difficult to obtain. This article states that an amendment “must be approved
in two ordinary and consecutive periods. Following approval in the first period by the majority of those
present, the proposal will be published by the government. In the second period, approval will require the
vote of the majority of the members of each chamber.”
352 I•CON 11 (2013), 339–357

like the constitutional replacement doctrine would be justified. This doctrine would
protect the integrity of constitutional guarantees of rights and democracy from the
risk of manipulation within a hyper-presidential environment. If we generalize the
example, we would have reason to believe that a doctrine such as this one would be
justified at least in a political context in which some reasonable conditions of fairness
and stability have not been met yet. As Waldron puts it in his famous core case argu-
ment, these conditions include: “democratic institutions in reasonably good” order,

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the existence of “a set of judicial institutions, again in reasonably good order,” and
“a commitment on the part of most members of the society and most of its officials to
the idea of individual and minority rights.”31 It is difficult to accept that a hyper-presi-
dential system, in which opposition minorities are less likely to wield effective political
control over the president, is a system of good working democratic institutions.
It is easy to understand why, in a political landscape such as the one described, the
Constitutional Court has played a role which has nothing to do with the original idea
about the kind of courts endorsed by Hans Kelsen in his famous 1929 essay on con-
stitutional jurisdiction.32 With great popular support, the Constitutional Court began
to exercise innovative forms of control over the government with the purpose of com-
pensating for the predominance of the president and the deficit of political control by
the Congress. Judicial review of the content of constitutional amendments by means
of the constitutional replacement doctrine is one of these new forms of control.33
Yet, is it possible to justify this doctrine and make sense of it? And if so, how?
Let us first consider the justification of the doctrine. The constitutional replacement
doctrine is justifiable by means of two arguments: conceptual and normative. The
conceptual argument backs the claim that the concept of constitution, which we use
in both ordinary and technical language, implies, at least in civil law systems, three
necessary elements: the protection of constitutional rights, the rule of law, and the
principle of the separation of powers.34 This minimalist concept of the constitution

31
Waldron, supra note 16, at 1360.
32
Hans Kelsen, Wesen und Entwicklung der Staatsgerichtbarkeit, 5 Veröffentlichungen der Vereinigung der
Deutschen Staatsrechtslehrer 37 (1929).
33
Along with the judicial review of constitutional amendments by means of the constitutional replace-
ment doctrine, the most relevant example of these innovative forms of control is the judicial review
of governmental policies concerning the satisfaction of social and economic rights. Far removed from
Kelsen’s image of the Constitutional Court as a “negative legislator,” the Colombian Constitutional Court
has issued concrete commands to the Congress and the government requiring the enactment of laws
and their enforcement by means of policies and positive administrative actions with the purpose of, e.g.,
guaranteeing decent living conditions of prison inmates (judgment SU-995/1999), a yearly increase
of the salaries of public employees according to the official inflation rate (judgments C-1433/2000,
C-1064/2001, C-1017/2003, and C-931/2004), the rights to housing, education, and health of people
displaced from the countryside to cities as a result of the activities of the guerilla and paramilitary groups
(judgment T-025/2004); protecting the right to housing against certain unfair rules governing mort-
gages rates (judgments C-383/1999, C-700/1999, C-747/1999, and C-995/1999); and enhancing the
health system by having it include certain necessary minimal treatments and medications (judgment
T-760/2008).
34
In common law, there can be a constitution without a charter of fundamental rights. The Australian
Constitution is an example of this.
 Unconstitutional constitutional amendments in the case study of Colombia 353

underpins the statement of articles 2 and 16 of the French Declaration of the Rights
of Man and of the Citizen. Article 2 states that the aim of all political associations [that
are created by means of a constitution] is the preservation of the rights of human
beings. According to article 16, a “society in which the observance of the law is not
assured, nor the separation of powers defined, has no constitution at all.” The intu-
ition underpinning these articles is that an appropriate use of the concept of constitu-
tion would refer to a set of norms institutionalizing the protection of constitutional

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rights, the rule of law, and the principle of the separation of powers.35 A constitution
cannot fail to possess these properties without becoming a different kind of thing.
If this is true, then it is the basis for the first justification for the constitutional
replacement doctrine. The power to amend the constitution cannot comprise the
power to alter its nature. That the derivative constituent power has the power to mod-
ify the constitution necessarily presupposes that a constitution must exist prior to and
following the exercise of this power. Thus, the derivative constituent power cannot
transform the constitution into a different kind of entity by depriving it of one or more
of its three essential conceptual elements. Moreover, this justification provides a foun-
dation for the conclusion concerning the meaning of the constitutional replacement
doctrine. The derivative constituent power is not authorized to substitute the constitu-
tion with a different kind of entity in the sense of derogating either all constitutional
rights, the principle of the rule of law, or the principle of the separation of powers.
Consequently, according to the conceptual argument, an amendment replaces the
constitution if, and only if, it derogates one or more of these three elements.36
The conceptual argument constrains the amending power so that it is unable to
alter the nature of the constitution. Nevertheless, the strength of this argument is
very limited. First, it is contingent on our current linguistic uses of the concept of
constitution. For instance, if a concept of constitution drawn from the Australian tra-
dition in which the constitution does not encompass a charter of constitutional rights
were to become predominant in civil law systems, the meaning of the constitutional
replacement doctrine ought to change in the sense that the amending power would
comprise the authority to derogate a chapter of written constitutional rights without
altering the nature of the constitution.
Second, this argument is not able to support the claim that constitutional amend-
ments cannot change the specific nature of the historical Colombian Constitution of
1991. This constitution has some properties that, among all possible constitutions,
confer upon it its differentia specifica. It is plausible to think that the constitutional
replacement doctrine constrains not only any attempt to alter the nature of the consti-
tution, but the substitution of the historical constitution with a new one. However, in

35
These norms are abstract entities which represent either the meaning of some propositions (constitu-
tional provisions) or an abstraction of the norms governing a practice adopted jointly by a group of indi-
viduals that regard these norms as obligatory.
36
In logical notation, this meaning of the constitutional replacement doctrine can be stated by means of
the rule CR ↔ DCRs ∨ DRoL ∨ DSoP. According to this rule, there is a replacement of the constitution
(CR) if and only if all constitutional rights (DCRs), or of the principle of the rule of law (DRoL), or of the
principle of the separation of powers (DSoP) are derogated.
354 I•CON 11 (2013), 339–357

order to make sense of this claim, it is necessary to introduce a normative argument.

Furthermore, it is possible to derive from this argument a conception of the meaning
of the constitutional replacement doctrine which would take into account the answer
to the question about the specific properties of the historical Colombian Constitution.
The normative argument is grounded in the ontological claim that constitutions
are intentional entities. They are human-made entities. We, the people, create them,
acting together intentionally, either by means of a solemn declaration concerning the

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validity of certain sets of written statements (in the case of written constitutions) or
by means of a social practice in which we are participants (in the case in which the
constitution is a set of unwritten rules). Moreover, as it happens with all intentional
entities,37 we create constitutions with some specific purpose such as solving problems
of coordination and our basic moral problems whose solutions are contentious.38 It is
possible to solve these kinds of problems in different ways. Every constitution implies a
decision about the adoption of a specific kind of political system that implies a particu-
lar way in which these basic coordination and moral problems can be solved. This spe-
cific kind of political system confers each historical constitution its differentia specifica.
Choosing a specific political system is a two-dimensional act. As confirmed by Carl
Schmitt’s theory, it is undeniable that this choice is a contingent social fact, namely,
the product of the exercise of the constituent power. In the case of the enactment of
a written constitution, the exercise of this power is a collective intentional action in
which some relevant members of the society declare as a group that the set provi-
sions of a written constitution are valid and create the state and its legal system. This
corresponds to the factual dimension of the exercise of the constituent power. If this
power had only this dimension, it could, at any time, totally or partially replace the
constitution by enacting constitutional amendments. There is no reason why a new
contingent exercise of the constituent power would not be able to replace the result
of previous exercises of this power. There is, however, one exception to this claim. The
ability to solve coordination and moral problems implies that the adopted political sys-
tem endures over time. These problems cannot be resolved if constitutional rules are
being constantly amended. Thus, there is a pragmatic reason in favor of preserving a
political system adopted by the constitution.
Nonetheless, the exercise of the constituent power also has a critical or ideal dimen-
sion.39 In this dimension, the constituent power necessarily raises a claim to adopt a
correct political system, in the sense that it is a political system compliant with the
basic principles of justice. This claim is implicit in the very act of enacting a constitu-
tion. To paraphrase Alexy, it would be absurd if, for example, a constitutional assembly
stated in the preamble to a constitution something like the following: we the people
enact this constitution which institutionalizes an unjust political system.40 As Alexy

37
For an explanation of social institutions as grounded in collective intentional actions, see John Searle,
Making the Social World (2010), in particular, ch. 1.
38
On this purpose of law, see Scott Shapiro, Legality 170 (2011).
39
On this dimension, see Robert Alexy, The Dual Nature of Law, 23(2) Ratio Juris 167, 167 (2010).
40
Id. at 170.
 Unconstitutional constitutional amendments in the case study of Colombia 355

explains, absurdities of this kind stem from a performative paradox, that is, a paradox
between what is implicitly claimed in the preamble, namely, that the political system
to be institutionalized is just, and what is explicitly declared, namely, that it is unjust.
This makes it explicit that the enactment of a constitution implies for the constituent
power to have claimed and, accordingly, have aimed at adopting a correct political sys-
tem. For a group of people acting together to count as a constituent power, they must
have shared intentions to adopt a correct political system for their society.

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It is possible to advance the normative argument within this framework.
According to this argument, in the ideal dimension, the differentia specifica of the
Colombian Constitution is that it claims and aims to institutionalize a correct politi-
cal system in the law. This system is deliberative democracy. Although there is a
strong debate concerning the concept of deliberative democracy,41 it is nonethe-
less generally understood as a system that provides an ideal of political legitimacy.
Political decisions aiming to solve social coordination and moral problems are ide-
ally legitimate when they are made through a discursive procedure. This procedure
implies the need to justify all political decisions and to make them by means of a
public exchange of arguments “offered by and to participants who are committed
to the values of rationality and impartiality,” and in which all those affected by the
decision can take part directly or through their representatives.42 The Colombian
Constitution aims to institutionalize this ideal not only by recognizing the three
generic elements of a constitution (constitutional rights, the rule of law, and the
principle of the separation of powers) but by means of guaranteeing certain specific
constitutional rights (such as personal liberty, freedom of expression and freedom
of political association, among others) and establishing particular democratic pro-
cedures of decision making.43
From the ideal dimension of the constituent power, it follows that for any exercise of
the original constituent power to be legitimate, this power must aim to adopt a correct
political system. Accordingly, for any exercise of the derivative constituent power to be
legitimate, this power must aim to preserve or improve the political system adopted by
the original constituent power if this system is a correct one. In this way, preserving
or improving the original correct political system cannot be incompatible with the
content of the intentions of the members of the derivative constituent power acting
together, and, consequently, with the content of constitutional amendments. If this
is true, then in the case of the Colombian Constitution, the content of constitutional
amendments cannot be incompatible with the aim of preserving or improving delib-
erative democracy. It follows that the content of constitutional amendments cannot
derogate any of the specific constitutional rights and procedures that make it possible
for the political system to institutionalize a deliberative democracy.

41
On this discussion, see Cristina Lafont, Is the Ideal of a Deliberative Democracy Coherent?, in Deliberative
Democracy and its Discontents 3 (Samantha Besson & Jose Luis Marti eds., 2006).
42
Jon Elster, Introduction, in Deliberative Democracy 8 (Jon Elster ed., 1998). See also Amy Gutmann & Dennis
Thompson, Why Deliberative Democracy 3 (2004).
43
Robert Alexy, Discourse Theory and Human Rights, 9 Ratio Juris 209 (1996).
356 I•CON 11 (2013), 339–357

The conceptual and the normative arguments are the basis for a theory concerning
the meaning of constitutional replacement. The fact that the Constitutional Court is
the guardian of the integrity of the constitution,44 grounds the competence of the
Court to review that constitutional amendments do not make it impossible for the
political system to institutionalize a deliberative democracy. The Court exercises this
control in virtue of an argumentative representation of the people.45 Nonetheless,
this constitutional review cannot be identical to the constitutional review of ordinary

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laws. There can be no identity between constitutional review of constitutional amend-
ments and constitutional review of ordinary laws. This can be called the non-identity
thesis.46
But, then, what ought to be the differentia specifica of the constitutional review of
the constitutional amendments?
The claim of this article is that the Constitutional Court ought to follow two rules
and a standard in this specific kind of constitutional review.
The first rule states that an amendment is a replacement of the constitution if, and
only if, according to the conceptual argument, it derogates the charter of constitu-
tional rights, the rule of law, or the principle of the separation of powers; or if, accord-
ing to the normative argument, it changes the constitution in such a way that it can
no longer be considered an institutionalization of deliberative democracy. This rule
specifies the meaning of the constitutional replacement doctrine and has the capacity
to account for our intuitions concerning the thought experiments described above.
A  caste system entrenched in the constitution could be replaced by an egalitarian
system because it advances deliberative democracy. Yet, an amendment to the con-
stitution which severely constrains freedom of information and eliminates discursive
procedures for the sake of attributing greater political power to the president, would
be a clear case of constitutional replacement. It would replace deliberative democracy
with an unjust political system, one that does not differ much from a dictatorship.
Furthermore, this rule would grant an enhanced margin of discretion to the amend-
ing power whereby this power could modify all possible elements of the constitution
that are neutral to the institutionalization of deliberative democracy. This would
allow flexibility in updating the constitution as needed in order to respond to changes
in the society. It is very unlikely that an all-encompassing constitution, such as the
Colombian one, which contains specific law-like regulations about many different
matters, could last long without this kind of flexibility.
The second rule concerns constitutional amendments infringing upon constitu-
tional elements that are central to the institutionalization of deliberative democracy.
The Constitutional Court is right when it states that not every infringement of a fun-
damental constitutional principle is a partial constitutional replacement. Mutatis

44
Art. 241 of the Colombian Constitution empowers the Constitutional Court to be the guardian of the
integrity of the Constitution.
45
On the Constitutional Court as argumentative representative of the people, see Robert Alexy, Balancing,
Constitutional Review and Representation, 3(4) Int’l J. Const. L. 572 (2005).
46
I owe this remark on the non-identity thesis to Robert Alexy.
 Unconstitutional constitutional amendments in the case study of Colombia 357

mutandi, not every infringement of an element that is central to the institutionalization

of deliberative democracy can be considered as a constitutional replacement. Within
this context, respect of the democratic principle requires that the criterion used to
determine what constitutional amendments replace the constitution be minimalistic.
This criterion should point to the extreme nature of the infringement. The following
rule reflects an appropriate criterion: amendments infringing upon constitutional ele-
ments that are central to the institutionalization of deliberative democracy imply a

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replacement of the constitution if, and only if, the infringement is of such magnitude
that the political system can no longer be consider as an institutionalization of delib-
erative democracy.47
The two rules defining the meaning of the constitutional replacement doctrine are
open-textured. There will be clear cases in which they apply and clear cases in which
they do not apply at all to a constitutional amendment. There will be also penumbra
cases. Only in these cases there might be reasonable disagreement and empirical or
normative uncertainty about such matters as the question whether a constitutional
amendment renders deliberative democracy impossible. In the case of a disagree-
ment, the Constitutional Court has a margin of discretion for applying the rules with
a higher or lower intensity for the purpose of judicial review. There should be a stan-
dard that would prevent the Court’s decision-making from exceeding its margin of
discretion. This standard derives from the democratic challenge to the constitutional
replacement doctrine explained above. According to this standard the less a consti-
tutional amendment is the result of a procedure observing the rules of deliberative
democracy, the more intensive should be the judicial review. Similarly, the more a con-
stitutional amendment is the result of a procedure observing the rules of deliberative
democracy, the less intensive should be judicial review. This standard aims to achieve
a balance between two dimensions of the democratic principle: recognizing the demo-
cratic power of the people to amend the constitution, on the one hand, and protecting
deliberative democracy, in particular, from the excesses of the exercise of hyper-presi-
dential powers, on the other hand. In penumbra cases, the more the people themselves
engage in fair discourse and decide to amend the constitution, the more deference
the Constitutional Court should show in applying the constitutional replacement doc-
trine. Similarly, the less an amendment is the result of a discourse among the people
themselves, the stricter the Court should be in protecting deliberative democracy in
the name of the people.

As is common in constitutional review, it is also possible to use the principle of proportionality in order to
47

determine whether an infringement of a central element of deliberative democracy is unconstitutional.

The rule of the extreme nature of the infringement would be a part of the principle of proportionality in
narrower sense. Within this context, this principle would state that an infringement of a central element
of deliberative democracy is unconstitutional if and only if the degree of the infringement upon this ele-
ment is extreme, while the degree in which the amendment contributes to achieve its pursued end is of
a lower degree. See, generally, on the principle of proportionality in constitutional comparative law Alec
Stone Sweet & Jud Mathews, Proportionality, Balancing and Global Constitutionalism, 47 Col. J. Transnat’l
L. 73, 75 (2008).