Assessing Constitutional Amendment: Internal and External Standards of Legitimacy in Times of Autocratic Retrogression

Abstract Contemporary scholarship on constitutional amendment and change unfolds against a backdrop of significant, and often troubling, new developments. Amendments today are increasingly unmoored from their traditional purpose – to adapt constitutions to new realities and to reflect emerging consensus – and instead often emerge as part of projects that put core constitutional functions and commitments under stress. As a result, scholarly focus has shifted from questions of the object, modality, or frequency of constitutional amendment to questions of its legitimacy. This article calls for a broadening of our analytic vocabulary to foster a more expansive and critical discourse on the subject. It begins by showing how the growing complexity of constitutional amendment practices challenges traditional theoretical frameworks, such as the ‘unconstitutional constitutional amendment’ doctrine and other standards of internal legitimacy. In response, the article introduces the notion of ‘ external legitimacy standards’ and examines their various forms. Particular attention is given to an approach that ties the legitimacy of amendments to the provision of adequate justification. The article concludes by identifying two types of context in which recourse to the notion of external legitimacy standards may prove valuable, either independently or alongside standards of internal legitimacy.