This introduction to our special issue on ‘Constitutional Legitimacy and Amendments’ presents a framework for a more nuanced understanding of how constitutional change is contested, moving beyond the conventional notion of ‘unconstitutional’ constitutional amendments. We advocate for a clearer distinction between legality and legitimacy when analysing contestation over constitutional change, arguing that focusing exclusively on legality without addressing legitimacy risks oversimplifying constitutional debates and overlooking questions of broader political and social acceptance. We identify three grounds on which the legitimacy of a constitutional amendment may be challenged: lack of representativeness (an amendment is illegitimate if it is not representative of the will of the people); lack of justice (an amendment is illegitimate if it is unjust in a significant manner); and bad faith (an amendment is illegitimate if it is motivated by ulterior motives). We also outline three ways in which legality and legitimacy intersect: (1) legally valid amendments may still face challenges regarding their legitimacy; (2) formally illegal constitutional changes may still be perceived as legitimate; and (3) even amendments that are both legal and legitimate may still require legitimacy to be established through means other than procedural and substantive commitments to legality. By recognising that challenges to constitutional amendments often involve claims of both legality and legitimacy, our framework expands the analysis of constitutional amendments beyond claims based on constitutional identity or unamendability and contributes to a better understanding of how such amendments are contested.

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.

This article compares constitutional amendments in China and Taiwan to explore the long shadow cast by the Chinese encounter with ‘modernity’ on their divergent constitutional roads. It observes that in China, preambular changes have been the characteristic of the amendments to the 1982 Constitution of the People's Republic of China, while the rule-conformity feature of Taiwan's multiple rounds of constitutional revision indicates that the preservation of the formal identity of the 1946 Constitution of the Republic of China is central to Taiwan's constitutional transformation. The article argues that the prominence of the preamble in China's constitutional amendments reflects the programmatic character of its socialist constitution, which is seen as an instrument for progress and emancipation through revolutionary forces. In contrast, Taiwan's rigorous observance of amendment rules underscores the pivotal role of legality in its constitutional development. Progress and continuity underlie the respective necessary legitimating conditions for constitutional amendment in China and Taiwan. Tracing the revolution-progress and the legality-continuity nexuses to the Chinese quest for liberation from Western imperialism, this article suggests that modernity guides both China and Taiwan in maintaining the legitimacy of their respective constitutions. China's path towards modernity tells a story of constitutional struggle in the prehistory of the Global South.

Many legal rules and principles may govern constitutional amendment. Observance of these rules and principles is an elementary focus point for the study of constitutional change. But constitutions do not exist solely in a legal reality. They are a cornerstone of the body politic in which they are adopted. Studying constitutional amendments through the lens of their legitimacy requires more than merely assessing their legality. However, distinguishing legitimacy from legality raises the question of whether an illegal amendment can still be considered legitimate, and conversely, whether a legal amendment can still be deemed illegitimate. Through a case study of constitutional overhauls in Belgium in the post-war period, I explore how these two possibilities manifest in practice, demonstrating that at crucial occasions in a state's history, amendments deemed illegal may be legitimised, and technically legal amendments may face criticism regarding their legitimacy.

In many African countries with hegemonic-party or de facto one-party systems, political leaders have historically exploited ostensibly proper constitutional amendments to undermine constitutionalism, a practice raising questions about the legitimacy, or lack thereof, of such amendments. This article argues that amendment legitimacy is contingent on achieving ‘broad consensus’, a concept endorsed by the African Charter on Democracy, Elections and Governance. Traditional amendment procedures, such as supermajorities and referendums, while crucial, have proven to be imperfect proxies for ensuring such broad consensus. To more effectively safeguard the core constitutional rules of democratic governance, this article contends that political parties must be recognised as key sites of power division and checks and balances. Accordingly, constitutional amendment procedures should require some level of cross-party approval for key amendments, thus preventing individual political groups, regardless of their dominance, from unilaterally altering fundamental rules of the game. This approach would not only enhance the legitimacy of amendments but also serve as a safeguard against contemporary forms of democratic backsliding, where incumbents exploit formal processes to undermine democratic competition. While this process might make constitutional changes more difficult, it would apply only to a narrow set of fundamental aspects of constitutional democracy. Moreover, it does not necessarily conflict with popular self-governance (and its majoritarian expression), but instead calls for an inclusive re-imagining of majoritarianism.

This article examines the relationship between legality and legitimacy in postcolonial constitution-making, focusing on Singapore's two stages of sovereignty transfer from colonial rule to independent statehood: its decolonisation from Britain in 1963, achieved through merger with Malaysia, and its separation from Malaysia in 1965. The article shows how different forms of legitimacy were established and sustained during these transitions. The first independence was characterised by legal continuity and political legitimacy, solidified through peaceful negotiations and the strategic use of a 1962 referendum that helped mitigate internal opposition. By contrast, the second independence in 1965 was a ‘legal revolution’, as neither the Malaysian Federal Constitution nor the State of Singapore Constitution 1963 provided for secession and the People's Action Party (PAP) government lacked an explicit public mandate to negotiate the secession. This break in legal continuity required new sources of (revolutionary) legitimacy, which the PAP government secured through subsequent electoral dominance, constitutional consolidation, and political manoeuvres. This article underscores the fact that legitimacy in making, amending, and consolidating constitutions is inherently transient and unstable, requiring continuous renewal through various political and legal mechanisms.

This article examines the central-local relation between China's unitary and socialist state and its capitalist Special Administrative Region (SAR) of Hong Kong, and considers that, notwithstanding the centralised system underpinning the relationship, Chinese central decision-making in respect of Hong Kong could raise issues of legitimacy. This article focuses on the decision-making of China's National People's Congress and its Standing Committee between 2016 and 2021, purportedly pursuant to the Chinese Constitution and the Hong Kong Basic Law (the instruments providing for Hong Kong's different systems). Upon examination, this article argues that legitimacy-based inhibition, restriction, and resistance arises in relation to the legal control exercised by the Chinese central authorities over Hong Kong. This is made possible by the ‘conditionality’ of the Basic Law, framed as the implementation of China's policies for the return of Hong Kong on 1 July 1997, and by the nurturing of the perceived pluralistic premise of the policy of ‘One Country, Two Systems’ by Hong Kong's common law judges and lawyers in their interpretation and application of the ‘imposed constitution’ of the Basic Law.

Democracies today do not collapse all at once, in an extreme and illegal manner, but erode gradually, through a series of subtle and seemingly legal measures. This challenges traditional theories of unconstitutional constitutional amendments, which are designed to address revolutionary changes that negate core features of the constitutional order. How should courts respond when a constitutional amendment comes at the early stages of a process of democratic erosion, when the ‘first brick’ is falling from the fortress of democracy, or when would-be autocrats slice the first piece from the ‘salami’ that is the democratic constitutional order? Against the backdrop of Israel's recent judicial overhaul, we argue that in countries experiencing incremental democratic erosion, courts must take a broad and contextual view and, when there is evidence that further anti-democratic moves are being planned, prevent that ‘first brick’ from falling. This is crucial to protect other democratic institutions, such as significant gatekeepers or constitutional courts.