Scholars frequently distinguish between “hard” and “soft” forms of judicial review: “hard” review gives courts the final say on constitutional questions, while “soft” review attempts to strike a balance between judicial and legislative supremacy by giving the legislature the ability to override or set aside what the courts have done. By itself, however, the hard/soft distinction captures neither the degree of finality nor the ultimate impact of judicial review. On the one hand, even in systems of nominally hard review, the government usually retains the ability to effectively override the courts via constitutional amendment. On the other hand, a small but growing number of courts – the Taiwanese Constitutional Court among them – have claimed the power to invalidate constitutional amendments as unconstitutional. Using Taiwan as illustration, this chapter highlights three factors that must be considered in evaluating the extent to which courts have the last word on constitutional matters. First is the formal legal effect of the decision (for example, whether a decision has suspended effect or is valid inter partes rather than erga omnes). Second is the ease with which judicial decisions can be formally overridden or set aside (as in the form of legislative override or constitutional amendment). Third is the extent to which judicial decisions require cooperation and implementation by other institutions of government in order to have practical effect.

Recent scholarship has highlighted the theoretical possibility and examples of the tools of constitutional change being used “abusively,” in order to erode the democratic order. This chapter will explore the experience of constitutional backsliding in Colombia, and the response to those efforts by the Colombian Constitutional Court and other political actors. The chapter will explain the utility of a well-developed doctrine of unconstitutional constitutional amendment as a response to potentially abusive amendments such as term limit extensions. However, it will also highlight the dependence of such a doctrinal response on particular political conditions that often do not hold throughout Latin America.