Title: Abuses and disloyalties in constitutional change

Authors: Leonardo Álvarez Álvarez

Addresses: University of Oviedo, Campus del Cristo, s/n, 33006 Oviedo, Spain

Abstract: The present article seeks to study the problem of constitutional changes carried out with the aim of undermining democracy, something that the American legal literature has analysed in relatively recent times under the category of 'abusive constitutionalism'. In fact, the abuse of democratic procedures with the aim of undermining democracy has been already analysed in the European academic discourse of the 20th century under the concept of 'constitutional loyalty'. The main innovation of the European discourse has been to stop conceiving the abuse of democracy to undermine democracy as a logical or theoretical problem, and to start considering it a legal infringement of the rule of constitutional loyalty instead. This article aims at studying whether the rule of loyalty can also be used to declare unlawful the abuse in constitutional changes and at determining the consequences thereof.

Keywords: abusive constitutionalism; constitutional fraud; constitutional loyalty; constitutional amendment power; constituent power; constitutional theory; democracy; unconstitutional constitutional amendments; higher law making; ingantibility clause.

DOI: 10.1504/IJHRCS.2020.111510

International Journal of Human Rights and Constitutional Studies, 2020 Vol.7 No.4, pp.323 - 339

Received: 29 Apr 2020
Accepted: 12 May 2020

Published online: 23 Nov 2020 *

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