In other words, judicial review expresses the democratic base of the constitution, i. Turkey, Zeynep Tekin v. In general, there is a rising interest in issues concerning secularism in modern countries; 51 specifically, the issue of headscarf bans is highly relevant in various European countries. To recapitulate, the amendment power is an extraordinary power, capable of amending the Constitution and its components; however, it is not an expression of the original constituent power. But that, as aforementioned, is not the interpretation of the Court. Even if a constitutional provision accords supremacy to international law, that provision itself will be subject to amendment, if necessary by resort to the constitution-giving power of the people. According to the Volksinitiative, asylum seekers who enter the state unlawfully would be deported immediately and without the option of appeal.

Frierson, Amending the Constitution of the United States: By Leticia Kreuz and Yaniv Roznai. Judicial review of constitutional amendment engages with the status and role of the court in a democratic society, and bears significant implications for the principles of judicial discretion, independence and accountability. It no longer amends the constitution but constitutes a new one. Every constitution has an implicit unamendable core, which demands appealing to the primary constituent power for its amendment. Is Strasbourg or the Supreme Court Supreme?

See Headscarf Decision ofsupra note 1, at This is very bad.

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In a later case, the ECtHR examined the issue of religious dress in the context of the Turkish headscarf ban. The motives for such restrictions and the aims those restrictions are designed to accomplish vary. The Constitutional Court explained that secularism had acquired constitutional status by reason of the historical experience of the country and the particularities of Orivinaire compared with other religions; that secularism was an essential condition for democracy; and that it acted as a guarantor of freedom of religion and of equality before the law.


The Supreme Court held that the people, not God, are the creator of the Constitution and the supreme authority.

Both the constitution- making and constitution-amending powers are constitutive in the sense that it dérjvé are powers to constitute constitutional rules. Georges Vedel in fact used the term derived constituent power, which is nowadays employed by French authors, in Eisgruber, The Living Hand of the Past: A Reply to Mr. Reviving the old French doctrine distinguishing between original constituent power and derived constituent power, it argues that the amendment power is sui generis: Natural law is not primarily concerned with the structure or form of law, but rather with its content.

dissertation pouvoir constituant originaire et dérivé

Therefore, this power differs from and superior over ordinary constituted powers and must be of a constitutive nature. Its will is always legal. All of these issues must be borne in mind when thinking about the broad authority with which the Turkish Constitutional Court has empowered itself.

Unamendability is not a mere declaration. Bauman, Tsvi Kahana eds.

dissertation pouvoir constituant originaire et dérivé

Joseph and Gordon R. This could not happen in this country. See also William E. On the contrary, states commonly grant the constitution superiority over international law, even when international law is given superiority over ordinary legislation.

The second limitation derives from the first one, but it is one logical step forward: This is a constitutional break concealed by continuity.

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With regard to the scope of unamendability, the more detailed the unamendable provision is and the wider its scope, the greater its tension with democracy, because it would place a larger number of principles or rules beyond the reach of any majority.


First, the fact that unamendability can be overridden by édrivé means should not severely undermine its usefulness in normal times and in states where political players understand that they have to play according to the democratic rules of dlssertation game. Accordingly, provisions created by the amendment power could subsequently be amended by the amendment power itself. Constitutional Courts as Guardians of the Constitution? Arguably, as equal components of the same origimaire, constitutional amendments simply cannot be unconstitutional.

It therefore proposed that the Federal Assembly invalidate the Volksinitiative, which it did on 14 March ; consequently, the Volksinitiative did not form the subject of a referendum. Remember me on this computer.

More important is the acknowledgment that this superiority is based not on any supra-constitutional theory, but rather on limitations within the constitutional order itself.

Marbury33 H ARV. Analytically, there is also a great resemblance between judicial review of ordinary legislation and that of constitutional amendments. Part I Opuvoir Bookstore Nollkaemper n 68— Nonetheless, as noted above, in the headscarf decision of June 5,the Constitutional Court revised its opinion and reiterated its earlier broad interpretation of its competence to review constitutional amendments: disserttion

dissertation pouvoir constituant originaire et dérivé