The Unconstitutionality of Constitutional Amendments in Colombia: The Tension Between Majoritarian Democracy and Constitutional Democracy

Abstract

This chapter analyses the “Constitutional replacement doctrine”, developed by the Colombian Constitutional Court in order to enable the judicial review of amendments to the Colombian Constitution of 1991 on substantial grounds. This doctrine is particularly relevant for comparative lawyers because it represents the grounding of a process of judicial review of constitutional amendments in the absence of an express clause granting that competence to the Constitutional Court. The “replacement doctrine”, in short, forbids the constituted powers of amendment from changing an “inherent part of the Constitution” or a set of overarching principles the violation of which would undermine the constitutional project as a whole. In spite of some specific dangers that this doctrine might entail, I am generally persuaded that the Court has developed sound arguments for the use of this process to protect the constitutional democracy against a merely majoritarian account of democratic procedures.