Seminar: Vertical reciprocity: Can Rawls’s case for implicit unamendability be strengthened?

The aim of the paper is to account for the nature, source and limits of constitutional amending power along lines consistent with, and possibly ameliorative of, John Rawls’s argument for implicit unamendability in Political Liberalism. In the first part, amending power is characterized as partaking of both constituted and constituent power and its exercise is elucidated in relation to the questions: when is amending needed or to be avoided? what can be amended? who is to amend what? in which institutional venues is amending to occur? The second part addresses the limits of amending power, by reviewing different justifications for the implicit unamendability of certain aspects of the constitution. Then a new justification, based on the notion of vertical reciprocity among free and equal generations of the same people, is introduced as an ameliorative addition to Rawls’ explicit argument for the structural entrenchment of the First Amendment of the Constitution of the United States. In closing, a ‘liberal principle of amending power’ is propounded, in order to complete the critical reconstruction Rawls’s view of implicit unamendability.