Unconstitutional constitutional amendments in the case study of Colombia: an analysis of the justification and meaning of the constitutional replacement doctrine

Carlos Bernal*

*Corresponding author for this work

Research output: Contribution to journalArticlepeer-review

26 Citations (Scopus)

Abstract

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 conceptual and a normative argument, and shows that they form the basis for an appropriate theory concerning the meaning of "constitutional replacement".

Original languageEnglish
Pages (from-to)339-357
Number of pages19
JournalInternational Journal of Constitutional Law
Volume11
Issue number2
DOIs
Publication statusPublished - Apr 2013

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