Constitutional Amendment - Inadmissible Amendments

Inadmissible Amendments

Some constitutions use entrenched clauses to restrict the kind of amendment to which they may be subject. This is usually to protect characteristics of the state considered sacrosanct, such as the democratic form of government or the protection of fundamental human rights. Amendments are often totally forbidden during a state of emergency or martial law.

• Under Article 79 (3) of the German Basic Law, modification of the federal nature of the country or abolition or alteration of Article 1 (human dignity, human rights, immediate applicability of fundamental rights as law) or Article 20 (democracy, republicanism, rule of law, social nature of the state) is forbidden. This is supposed to prevent a recurrence of events like those during the Nazi Gleichschaltung, when Hitler used formally legal constitutional law to de facto abolish the constitution.
• The final article of the Constitution of Italy (Article 139, Section 2, Title 6 of Part 2) holds the "form of Republic" above amendment.
• Article 4 of Part 1 of the Constitution of Turkey states that the "... provision of Article 1 of the Constitution establishing the form of the state as a Republic, the provisions in Article 2 on the characteristics of the Republic, and the provision of Article 3 shall not be amended, nor shall their amendment be proposed."
• Article Five of the United States Constitution, ratified in 1788, prohibited any amendments before 1808 which would affect the foreign slave trade, the tax on the slave trade, or the direct taxation provisions of the constitution. The foreign slave trade was outlawed by an act of Congress rather than by a constitutional amendment shortly after that clause expired in 1808. Also, no amendment may affect the equal representation of states in the Senate without their own consent. If the Corwin amendment had passed, any future amendment to the United States Constitution "interfering with the domestic institutions of the state" (i.e. slavery) would have been banned.
• Chapter 6, Article 120, section c of the Constitution of Bahrain prohibits "...an amendment to Article 2 of this Constitution, and it is not permissible under any circumstances to propose the amendment of the constitutional monarchy and the principle of inherited rule in Bahrain, as well as the bicameral system and the principles of freedom and equality established in this Constitution."
• Article 112 of the Constitution of Norway provides that amendments must not "contradict the principles embodied in this Constitution, but solely relate to modifications of particular provisions which do not alter the spirit of the Constitution".
• Section 284 of Article 18 of the Alabama State Constitution states that legislative representation is based on population, and any amendments are precluded from changing that.
• The Constitution of Portugal (Part 4, Section 1, Article 288) contains a long list (15 items) of things which amendments "must respect". It should be noted though that Article 288 itself can be amended.
• The Supreme Court of India in the Kesavananda Bharati case held that no constitutional amendment can destroy the basic structure of the Indian constitution.
• Article 60 of the Constitution of Brazil forbids amendments that intend to abolish individual rights or to alter the fundamental framework of the State—the Separation of Powers and the Federal Republic.