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Public Law & Legal Theory


Many courts, and constitutions, worldwide recognize the concept of an “unconstitutional constitutional amendment”, yet such a concept clearly raises troubling issues from the perspective of the rule of law, or concerns about judicial discretion. This essay addresses this issue – of discretion in the context of a doctrine of substantively unconstitutional constitutional amendments – by considering the possibility of courts limiting the scope of their discretion by linking notions of what is “fundamental” in a domestic constitutional system to common or generic transnational legal practices. This idea of transnational anchoring builds on previous work by scholars in the field, such as Vicki Jackson, but also implicitly advances a new understanding of what it means to engage with transnational legal sources based on the idea of posture of presumptive nondivergence from the transnational.



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