Beyond Invalidation: Unorthodox Forms of Judicial Review of Constitutional Amendments and Constitution-amending Case Law in Colombia

Abstract

Judicial invalidation of constitutional amendments has garnered the attention of scholars in the last few years. Questions like whether and how a court should quash an amendment are at the forefront of contemporary comparative-constitutional-law and constitutional-theory inquiries. This excessive focus on annulment, however, has neglected some other nonconventional forms of judicial involvement regarding amendments. Taking Colombia as a case study, this article shows that the Constitutional Court has also had the power to initiate amendments, define their content, rewrite their text, and promulgate them. As these novel judicial interventions that go beyond invalidation resemble the prerogatives commonly vested on the amendment power, this research terms them ‘constitution-amending case law’, offers an in-depth exploration of them, and proposes a typology of such a jurisprudence. Lastly, the article ends with a cautionary note about the challenges this type of constitution-amending case law faces from the perspective of democracy and democratic backsliding.

Keywords

• judicial review
• constitutional amendments
• unorthodox judicial review
• colombian constitutional court
• democracy