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Unconstitutional Constitutional Amendments. Comparative considerations on the recent case law

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Keywords: Basic structure, constitutional amendment, constituent power, human rights, judicial review, eternity clauses.

This contribution examines the Doctrine of the Basic Structure in its most recent development by the High Court of Kenya, and it compares this judicial theorization with the Implicit Limitation Doctrine elaborated by the Italian Constitutional Court. This comparison focuses on the concept of constituent power in order to understand whether theories of unamendability of constitutional test – though called with different definition – commonly rest on the necessity to preserve the constitutional identity of a given legal order. The article also discusses the rationale behind the (unwritten) limits, questioning over the necessity to adopt eternity clauses in constitutional texts

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