IJS Workshop: Republicanism and Unamendability (S. Rainford)

The next Irish Jurisprudence Society workshop of 2025-2026 will take place on November 19 2025 from 3.00-4:30pm in NUI Building (Phelan Room). This is at 49 Merrion Square East, Dublin.

Seán Rainford (DCU) will be presenting his paper, 'Republicanism and Unamendability'. Oisin Suttle (Maynooth)will be acting as discussant.

Abstract :

The unconstitutional constitutional amendments doctrine (‘UCAD’) is a major topic of interest in comparative constitutional studies. The doctrine holds that constitutions possess a essential core or ‘basic structure’ which cannot be amended by that constitution’s designated amending power. The doctrine generally allows the judiciary to strike down amendment proposals on their substance that violate this unamendable core. This paper considers the republican attitude to this question of unamendability. It first sets out a strand of thought among early modern republicans – from Niccolò Machiavelli to Algernon Sidney and Thomas Jefferson – which objected to constitutional permanency in any. It then considers neo-republicanism as set out by Philip Pettit.

This paper lays out the conflicts that exist between unamendability and republicanism considered broadly. These are summarised in five points. 1) The mutability and mortality of all constitutions is a reality of which early modern republicans were cognisant. Constitutions, like all human creations, were imperfect and would degrade and corrupt if not repeatedly subjected to fundamental change. 2) The republican understanding of constituent power as a living political force is distinct from that underpinning unamendability; limiting the scope of amendability therefore attempts to limit the people’s democratic power. 3) The contestability of all laws and policies is the minimum requirement for democratic legitimacy demanded by republicans; rendering important constitutional issues incontestable through unamendability detracts from such legitimacy. 4) The consequence of judicially-enforced unamendability is to make the judiciary the ‘final say sovereign’ within a constitution – this significantly lessens the attractiveness of judicial review generally for republicans. 5) The danger of problematic or ‘unrepublican’ constitutional amendments is best addressed at the level of civic virtue rather
than through legal constitutional constraints.

If you would like to join us and receive the paper, please subscribe to the mailing list by sending a request to irishjurisprudencesociety@gmail.com. All are welcome to attend!

Full program for the Fall 2025 Term on the IJS Website