Title: Constitutional replacement doctrine

Authors: Francisco J. Bastida Freijedo

Addresses: Department of Public Law, University of Oviedo, Campus del cristo s/n, Oviedo-33006, Spain

Abstract: The so called 'constitutional replacement doctrine' is a case-law doctrine of the India Supreme Court and the Colombia Constitutional Court, but also a scholarly one. This doctrine differentiates between constitutional amendment and constitutional replacement in order to protect what are considered the constitution's essential elements (basic structure). This doctrine justifies the power of the courts to review the substance of constitutional amendments and so to prevent constitutional amendment power from changing the constitution's essence, even when there are no expressed substantial limitations upon it and it complies with the constitutional amendment procedure. This paper critically analyses that doctrine, because it is based on a material understanding of the constitution that weakens its normative value.

Keywords: constitution; constitutional amendment; constitutional amendment power; constituent power; sovereignty.

DOI: 10.1504/IJHRCS.2020.111508

International Journal of Human Rights and Constitutional Studies, 2020 Vol.7 No.4, pp.296 - 310

Received: 24 Apr 2020
Accepted: 25 Apr 2020
Published online: 30 Nov 2020 *

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