Legisprudence Limitations on Constitutional Amendments? Reflections on The Czech Constitutional Court’s Declaration of Unconstitutional Constitutional Act
Abstract Can a constitutional norm be unconstitutional? This idea seems, at first sight as a self-contradiction. Unconstitutionality is commonly referred to those ordinary laws, inferior to the constitution, which violate it. Constitutional norms, in contrast, carry an equal normative status as the constitution itself and other constitutional provisions. The question of unconstitutional constitutional norms recently arose in the Czech Republic. On 10 September 2009, the Czech Constitutional Court declared Constitutional Act no 195/2009 Coll, on Shortening the Fifth Term of Office of the Chamber of Deputies to be unconstitutional. The Czech Constitutional Court held that the constitutional act was an individual, specific decision and retroactive, thus violating the unamendability provision (Art 9(2)) in the Constitution, which prohibits amendments to the essential requirement for a democratic state governed by the rule of law. This article analyses the Czech Constitutional Court’s decision in a broader comparative and theoretical perspective and focuses, mainly, on four issues: first, the Czech Constitutional Court’s authority to substantively review constitutional norms; second, the appropriate standard of review when exercising judicial review of constitutional norms; third, the ‘individual, specific’ character of the constitutional act; and fourth, its alleged retroactive application. The article claims that while the Czech Constitutional Court was generally correct in claiming an authority to substantively review even constitutional norms, this was not the appropriate case in which to annul a constitutional act.
The Three Waves of the Constitutionalism-Democracy Debate in the United States: (And an Invitation to Return to the First)
In the United States, the constitutionalism-democracy debate has taken many forms, it has come in different waves: the first wave focused on whether present day majorities should be allowed to abandon the constitutional forms created by the founders, the second on the legitimacy of judicial review and on selecting among different theories of constitutional interpretation, and the third - which, as I will argue later, comes closer to the first wave of the debate - on the exclusivity or (non) exclusivity of the Constitution’s amendment rule. Although those engaged in each of these waves made important contributions to constitutional theory, there was something special about the first wave. Freed from the questions of interpretation and the never ending controversy over the legitimacy of judicial review of legislation, the protagonists of that debate were able to consider the relationship between constitutionalism and democracy in its raw form: Should popular majorities be allowed to alter the Constitution? This paper will argue that contemporary constitutional theorists have moved away from this question, considering it only in a weakened form. The paper invites those interested in democratic constitutionalism to re-visit the first wave of the debate with a new, fresher perspective, one in which the actual participation of citizens in constitutional change is a priority.
Every Human Matters - Comments on the Occasion of the Terrorist Attacks in America
[1] On Tuesday of this week we were purposefully forced to witness deadly attacks, which demonstrate the vulnerability of a free, democratic society. It is the goal of such terrorism to fill us with dread and fear. It accomplishes this goal with a form of brutal violence that takes no account of individual lives. Ter-rorism seeks to move us to give up on our civil virtues such that we renounce the freedoms of civil society and the necessity of tolerance, which are the foun-dations of our democracy.

[2] But powerlessness and hate are neither promising nor recommendable answers to acts of barbaric terrorism. The images of celebrating Palestinian children make clear the consequences of an upbringing in which the (suppo-sed) enemey is no longer characterized as a human. The chances are slim that we can overcome terrorism when we repay these attacks in like manner. Blind revenge and hate only bring self-destruction. If the civilized world hopes to be victorious it cannot allow itself to compromise its respect for its fundamental values. Especially the recognition of the dignity and freedom of humankind di-stinguishes democracy from totalitarian ideologies. Human dignity and human rights know no weapons; rather, only citizens who make the observation of hu-man dignity and human rights an obligation.

[3] We grieve together today over the still uncounted victims who have died as members of a society which aims for the highest ideals of human dignity and peace. We honor these victims best when we understand their deaths as a challenge to our shared, fundamental Western values; and we respond by championing these values. In this way, in our parting with these victims, we guarantee that every human matters.