YANIV ROZNAI* Unconstitutional Constitutional Amendments—The Migration and Success of a Constitutional Idea† Can a constitutional amendment be unconstitutional? Prima fa- cie, this seems like a paradox. This vexing issue has attracted increased attention in recent years. Whereas the definition of the na- ture of constitutional amendment power is among the most abstract questions of constitutional theory, the question of limits on constitu- tional amendments is not purely of academic interest. It has practical application; the issue has already been adjudicated in numerous countries and is likely to arise, sooner or later, in other countries as well. This issue of limits is a fundamental one and much could be * PhD Candidate, The London School of Economics & Political Science (LSE), UK; Visiting Student Research Collaborator, Princeton University; LL.M, LSE; LL.B, B.A, Interdisciplinary Center Herzliya (IDC), Israel. Email: y.roznai@lse.ac.uk. All websites were visited on Oct. 22, 2012. All references to constitutions in this Article are taken from the HeinOnline database, World Constitutions Illustrated: Contempo- rary & Historical Documents & Resources, unless stated otherwise. This Article is part of a wider project regarding limitations on the constitutional amendment power, as part of the author’s PhD thesis at LSE (in progress). Sections of this Article were presented at the LSE PHD Upgrade Conference (May 13, 2011), the American Society for Comparative Law Annual Works-in-Progress Workshop (Princeton University, Feb. 11, 2012), LSE 2nd Year PhD Workshop (May 15, 2012), the Atlas Agora PhD Workshop (Bar-Ilan University, June 26, 2012), the 2012 Loyola Annual Constitu- tional Law Colloquium, Nov. 3, 2012), the Yale Law School’s 2012 Doctoral Scholarship Conference (Nov. 30, 2012) and the 2nd American Society of Comparative Law Younger Comparativists Committee Conference (Indiana University, Mar. 19. 2013). Some ideas have appeared in Yaniv Roznai, The Migration of the Indian Basic Structure Doctrine, in JUDICIAL ACTIVISM IN INDIA—A FESTSCHRIFT IN HONOUR OF JUS- TICE V. R. KRISHNA IYER 240 (Malik Lokendra ed., 2012). The author would like to express his gratitude to all of the participants in these events for invigorating discus- sions and comments, and especially to Kim Lane Scheppele, G ´ abor Halmai, Nathan Brown, Dorit Rubinstein Reiss, Ozan Varol, Jurgen Goossens, Thomaz Pereira, and Ittai Bar-Siman-Tov. The author would also like to thank Bianca Jackson and Stafanie Raker for their assistance in editing; to Gr´ egoire Webber, Michael Wilkin- son, Jan Kom ´ arek, Jacco Bomhoff, Serkan Yolcu, Avinash Govindjee and Michael Freitas Mohallem for assistance at various stages of the project; and to Mathias Rei- mann, the Editor-in-Chief of the American Journal of Comparative Law and the anonymous reviewer for their comments on an earlier draft. Finally, the author owes many thanks to Martin Loughlin and Thomas Poole for their most valuable supervi- sion, guidance, and support, and to Suzie Navot, Hillel Sommer, Guy Seidman, Yoram Rabin, Liav Orgad and Rivka Weill for their encouragement and motivation. This Article is dedicated to Professors Aharon Barak, Amnon Rubinstein and Claude Klein, “the three tenors” of Israeli constitutional law, for their inspiration. † DOI http://dx.doi.org/10.5131/AJCL.2012.0027 657