Term Limits and the Unconstitutional Constitutional Amendment Doctrine:

Lessons from Latin America

David Landau (Florida State University), Yaniv Roznai (IDC-Herzliya) and Rosalind Dixon
(UNSW)
Forthcoming in Alexander Baturo and Robert Elgie eds., Politics of Presidential Term Limits
(Oxford University Press).

Abstract: This chapter examines the interaction between term limit provisions and the
unconstitutional constitutional amendment doctrine in Latin America. It illustrates the varied
approaches of courts concerning the validity of attempts to amend presidential term-limits. In
Colombia, the Constitutional Court intervened to prevent what it saw as an undue easing of term
limits (after permitting one round of easing); In Venezuela, Ecuador, and Bolivia, courts
generally allowed attempts to ease or eliminate term limit using less demanding rather than
more demanding procedural routes; and in Costa Rica, Nicaragua, Honduras, and Bolivia,
judiciaries deployed the unconstitutional constitutional amendment doctrine in order to
eliminate rather than to protect term limits. After mapping the major constitutional decisions
issued on this issue in Latin America in recent years, the authors argue that transnational
anchoring holds some promise in clarifying the proper scope of control of constitutional change
regarding term limits.

Introduction
Presidential term limits are now a near ubiquitous feature of presidential systems
worldwide. They have also become a major battleground in democratic constitutional law and
politics. Where once the greatest threat to democracy was from full-scale military takeover, now
it often comes from subtler, more incremental forms of constitutional change – including
attempts by long-serving and powerful presidents to extend their own term in office (Scheppele,
2018; Landau, 2013).
One thing that is distinctive about the recent wave of term limits battles globally is also
the increasing involvement of courts and constitutional jurisprudence. The spread of
constitutional designs and doctrines limiting certain forms of constitutional change has created
an interesting interchange between presidents determined to remain in office and potential limits
on their ability to change the constitution to do so. In particular, the unconstitutional
constitutional amendment (UCA) doctrine, which holds that certain constitutional changes to a
“basic structure” or some similar concept cannot be undertaken by constitutional amendment but
rather require wholesale constitutional replacement, may place key limits on the ability of
presidents to extend their terms in office (Roznai, 2017).

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 This is especially true in Latin America: Recent constitutional fights across a number of
countries in the region have revolved around attempts by presidents to remain in office. In
countries including Venezuela, Colombia, Ecuador, Bolivia, Costa Rica, Honduras, Nicaragua,
and Paraguay, incumbent presidents have recently led attempts to ease or eliminate term limits
on their mandates. Constitutional courts in the region have also been frequently been called on
to rule on the validity of these attempts to amend presidential term-limits. Indeed, term limits
questions have easily been the most frequently litigated UCA issues in recent Latin American
jurisprudence.
Judicial decisions on term limits, however, have also been all over the map, and
consensus difficult to find – including in Latin America. In Colombia, the Constitutional Court
famously held that President Alvaro Uribe could amend the constitution to seek a second
consecutive term in office, but not a third. However, in a range of other countries including
Venezuela, Ecuador, and Bolivia, courts have held that attempts to ease or eliminate presidential
term limits did not attack fundamental principles of the constitution and thus did not require
special, more demanding procedures for constitutional change. In yet another group of countries,
Honduras, Nicaragua, and Costa Rica, courts have actually held that term limits themselves
constitute unconstitutional constitutional amendments, and have issued decisions excising them
from the constitutional text, thus allowing incumbents to run for reelection when they would not
otherwise be able to do so.
We argue here that a concept two of us elsewhere have called “transnational anchoring”
holds promise in pointing towards greater clarity on the application of the UCA doctrine to term
limits (Dixon & Landau, 2015). The concept is simple: in making decisions about which
constitutional changes impact the “fundamental structure” or similar concept in their domestic
constitutions, judges should be guided by comparative or transnational practice. As applied to
term limits, such a survey suggests that constitutional changes away from extremely strict one-
term lifetime limits should generally be allowed but that judges have strong normative grounding
to place limits on attempts to eliminate or radically ease presidential term limits, and that even
very strict term limits should not themselves be struck down as a UCA. The Colombian
Constitutional Court decision, which was carefully grounded in both comparative and domestic
experience, is the closest court to getting this balance right, while many other recent decisions
have struck a balance that we think highly implausible in light of transnational practice.
The rest of this chapter is organized as follows. Part I introduces the concept of the UCA
doctrine and its importance in recent global and regional constitutional theory and practice. Part
II explains the interaction between UCA and term limits, while Part III gives a very brief map of
the major constitutional decisions issued on the interaction between the UCA doctrine and term
limits in Latin America in recent years. Part IV argues that transnational anchoring holds some
promise in clarifying the proper scope of control of constitutional change regarding term limits.
Part V concludes.

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 I. The Rise of the UCA Doctrine
The idea that judges can strike down constitutional amendments, rather than ordinary
pieces of legislation, on judicial review grounds has struck many legal scholars as both bizarre
and dangerous. Bizarre because a constitutional amendment, unlike a statute, is in some sense on
the same normative level as the rest of the constitution. And dangerous because it threatens to
give judges an extraordinarily strong form of judicial review, which can potentially take away
one of the tools – constitutional amendment – that popular majorities or supermajorities can use
to control runaway courts. In other words, the UCA doctrine may create an especially strong
form of the counter-majoritarian difficulty (Jacobsohn, 2006).
Nonetheless, as one of us has noted, the doctrine has become one of the most successful
recent exports in comparative constitutional law (Roznai, 2013). It has become a quite common
tool in comparative constitutional jurisprudence across a wide range of countries and regions. In
addition, recent scholarship has sought to justify the existence of such a doctrine. 1 The most
fully-fleshed out defense rests on the distinction between “original” and “derivative” constituent
power (Roznai, 2017; Colon Rios, 2012). The basic idea is that the original constituent power, or
the people themselves, have an implicit power to rewrite or replace their constitution at any time.
The derivative constituent power, in contrast, is made up of those constitutional institutions
created by the original constituent power. The theory holds that in order to protect the original
constituent power of the people themselves, limits must be placed on the scope of change that
can be carried out by the “constituted” powers. In other words, certain changes are so sweeping
or fundamental that they may only be carried out by wholesale replacement of the constitution.
The UCA doctrine and constituent power theory have manifested themselves in a range
of ways in recent regional experience. First, it instantiates as a feature of constitutional design in
many countries. This is what Dixon and Landau (forthcoming 2018) have elsewhere called
“tiered constitutional design”: a constitutional design where different principles or provisions in
the constitution require different procedures for change. In Ecuador, Venezuela, and Bolivia, the
default method of constitutional change (called amendment) is fairly flexible, but certain
principles are placed on higher tiers and require a more demanding method of change. In
Ecuador, for example, changes to the “fundamental structure” of the constitution require a
procedure called “reform” rather than “amendment,” which is more demanding in the sense that
it requires a popular referendum in addition to congressional approval. Some changes, such as
“restrictions on fundamental rights,” cannot be carried out even by this more demanding
procedure, and instead require a constituent assembly and thus the intervention of the original
constituent power. The Ecuadorian constitution also explicitly charges the Constitutional Court
with determining which route is the proper route for a given proposed constitutional change. The
highest tier is the one according to which certain constitutional principles are considered
absolutely entrenched; completely unamendable through the formal amendment or reform
procedures. The Brazilian Constitution, for example, constitutional amendments that aim at

1
For scholarship exploring the expressive or symbolic functions of the doctrine, see Albert, 2013.

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abolishing the federal form of government, direct, secret, universal and periodic suffrage,
separation of powers or individual rights and guarantees, cannot be considered.
Second, in some countries courts have developed a UCA doctrine even though the
constitution does not include a tiered design expressly. Even where a constitution has only one
formal method of constitutional change, courts can hold that certain changes require the
intervention of the original constituent power, and thus can only be done via replacement rather
than amendment. In Colombia, for example, the constitutional text does create a distinction
between amendment (which can be carried out by Congress alone or by referendum) and
replacement carried out by constituent assembly, but it does not establish any principles
determining when each route must be used, and it expressly limits judicial control over
constitutional amendments to procedural issues. Nonetheless, the Court developed the
substitution of the constitution doctrine, holding that it could make a determination as to whether
a proposed change effectively replaced the existing constitution by making a major alteration to a
core constitutional principle (Bernal, 2013).
The UCA can be justified on a pragmatic ground as it can be useful as a speed bump
against “abusive” forms of constitutional change, or changes that threaten to work an erosion of
the liberal democratic order (Dixon & Landau, 2015; Issacharoff, 2015; Landau, 2013). As we
elaborate in the next section, this justification is particularly relevant to term limits.

II. The UCA Doctrine and Term Limits

Attempts by Latin American presidents to alter term limits are not new. Indeed, Negretto
has found that the desire for presidential reelection has been a major determinant of
constitutional replacement in the region; presidents unsurprisingly seek to replace or amend
constitutions when those constitutions prevent them from continuing in office (Negretto, 2013).
What seems to be newer, however, are conflicts between presidential attempts to ease or
eliminate term limits, and the UCA doctrine and its relatives, such as tiered constitutional design,
and presidential attempts to ease or eliminate term limits.
The pragmatic justification of the UCA doctrine as a useful speed bump against
“abusive” forms of constitutional change, or changes that threaten to work an erosion of the
liberal democratic order seems to be particularly relevant to some changes to term limits,
particularly for chief executives in a presidential system, which may raise such risks. The
lengthening or elimination of term limits may aid a president in consolidating political power
over rivals, and a longtime incumbent may gain increasingly significant advantages in
subsequent elections through both formal and informal means. Moreover, a very long tenure in
office will likely allow presidents to gain effective control over a range of institutions designed
to check their power, such as courts, ombudspersons, comptrollers, electoral commissions, and
human rights commissions. Control of these institutions can also be used to tilt the electoral
playing field in favor of incumbents by propping up the ruling party and harassing or

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undermining the opposition. Official-controlled courts, for example, can allow defamation suits
or anti-corruption investigations of the opposition, while packed electoral commissions or
tribunals can decertify or defund opposition parties, all while turning a blind eye to the abuses of
the incumbent party.
Accordingly, and given their sensitivity to abuse throughout regional history, term limits
are specifically given heightened constitutional protection from amendments with some
frequency. The constitution of Paraguay offers an example: it creates two procedures,
amendment and reform, and requires that certain articles, including those treating “the duration
of mandates,” can only be changed using the more-demanding reform procedure, which requires
a constituent assembly.2 In the extreme, some provisions can be made completely unamendable
by any route. Examples for such an absolute heightened protection are the 1985 Constitution of
Guatemala that protects the non-re-electability of the presidency and the 1983 Constitution of El
Salvador that provides that “under no circumstances, may the articles of this Constitution, which
refer to …. the principle that a President cannot succeed himself (alternabilidad) be amended.”
A strict one lifetime presidential term in the 1982 Constitution of Honduras, for example, is
likewise made unamendable by any means.3 Finally, even when not explicitly protected in the
constitution, term limits are often protected through the constitutional replacement doctrine. In
Colombia, the doctrine has been deployed to block constitutional amendments across a range of
areas, including questions dealing with judicial reform, the peace process with the FARC, the
conflict of interest rules for members of Congress, bureaucratic appointments, and – as detailed
below – presidential reelection. Several other countries in the region – such as Nicaragua and
Honduras – have also developed the doctrine without clear textual support.
The rise of doctrines controlling constitutional change has frequently led to judicial cases
in which courts have been tasked with determining whether presidential reelection attempts can
go forward. Table 1 summarizes the context of recent jurisprudence concerning term limits and
the limits on constitutional change in Latin America.4 As demonstrated there, cases have arisen
in many different countries of the region: in Central America, Costa Rica, Nicaragua, and
Honduras; and in South America, Colombia, Venezuela, Bolivia, and Ecuador.

2
After the Colombian President Alvaro Uribe successfully amended the constitution to allow two consecutive terms
in office, the next president, Juan Manuel Santos, pushed through a constitutional amendment reinstating a one-term
limit and likewise placing this reinstated limit on a higher constitutional tier. The new provision can only be altered
by Constituent Assembly or a referendum of popular initiation, thus preventing the default amendment procedure of
congressional approval in two rounds from being used.
3
Apart from Latin America, eternity clauses (or unamendable provisions) protecting presidential term-limits are also
common in Africa. See Fombad, 2007. Such provisions raise an important ambiguity, however. It is unclear whether
they can be changed even via the writing of a new constitution. This ambiguity was important in Honduras in 2009
during the removal of President Manuel Zelaya, discussed in more detail below.
4
It thus does not include cases where term limits controversies have arisen, but courts have not played a role. For
example, in Paraguay in 2017, the incumbent and his party attempted to change the presidential term limit via
ordinary amendment, rather than Constituent Assembly, even though the constitutional text expressly requires the
latter route for any change to “the duration of mandates.” The plan was scuttled in Congress after massive popular
protests, but since the judiciary was not involved, we do not treat the case further here.

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 Table 1: Recent Judicial Decisions on Term Limits in Latin America

Country Initial Term Limit Proposed Change Court Challenge

Colombia Single lifetime term Second consecutive C-1040 of 2005
limit term (Constitutional
Court)
Colombia Two consecutive Third consecutive term C-141 of 2010
term limit (Constitutional
Court)
Bolivia Two consecutive Third consecutive term 193/2015
term limit (Plurinational
Constitutional
Tribunal)
Bolivia Two consecutive Elimination of all term 84/2017
term limit limits (Plurinational
Constitutional
Tribunal)
Ecuador Two consecutive Elimination of all term 1-14-DRC-CC
term limit limits (Constitutional
Court)
Venezuela Two consecutive Elimination of all term 53 of 2009
term limit limits (Constitutional
Chamber, Supreme
Tribunal of Justice)
Costa Rica Single lifetime term Non-consecutive 2003-0771
limit reelection allowed (Constitutional
after eight years Chamber, Supreme
Court)
Nicaragua Consecutive Elimination of all term 504 of 2009
reelection prohibited; limits (Constitutional
two lifetime term Chamber, Supreme
limit Court)
Honduras Single lifetime term Elimination of all term Decision of Apr.
limit; unamendable limits 22, 2015
(Constitutional
Chamber, Supreme
Court)

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III Variable Outcomes
As Table 2 illustrates, however, the approaches of these courts have varied quite widely:
In Colombia, the Constitutional Court intervened to prevent what it saw as an undue easing of
term limits (after permitting one round of easing). In Venezuela, Ecuador, and Bolivia (case 1),
courts generally allowed presidential attempts to ease or eliminate term limit through the use of
less demanding rather than more demanding procedural routes. And in Costa Rica, Nicaragua,
Honduras, and Bolivia (case 2), judiciaries deployed the UCA doctrine in order to eliminate
rather than to protect term limits.

Table 2: Modes of Judicial Intervention on Term Limits

Courts Blocking Courts Allowing
Presidential Attempts to Presidential Attempts to
Extend Term Limits Extend Term Limits
Colombia: C-1040 of Venezuela: 53 of 2009
2005; C-141 of 2010 (Constitutional Chamber,
(Constitutional Court) Supreme Tribunal of
Justice);
Ecuador: 1-14-DRC-CC
(Constitutional Court);
Bolivia: 193/2015
(Plurinational Constitutional
Tribunal)
Courts Eliminating Term
Limits Using UCA Doctrine
Costa Rica: 2003-0771
(Constitutional Chamber,
Supreme Court); Nicaragua: 504
of 2009 (Constitutional Chamber,
Supreme Court); Honduras:
Decision of Apr. 22, 2015
(Constitutional Chamber,
Supreme Court); Bolivia:
84/2017 (Plurinational
Constitutional Tribunal)

Rather than attempting to give a full analysis of this extensive jurisprudence here,
however, we focus on several key cases that help set up our normative argument below –
Colombia (2010), Ecuador (2014), and Honduras (2015). These cases demonstrate the various
ways in which UCA doctrines can influence (or fail to influence) presidential attempts to alter
term limits.
A. Courts Blocking Amendments to Extend Term Limit: Colombia 2010
Probably the best known of the recent term limits cases are those issued by the
Colombian Constitutional Court after President Alvaro Uribe, who held power from 2002 until
2010, first amended the constitution to allow a single consecutive reelection, and then attempted
to amend it again to allow a possible third term. Both amendments were challenged on
procedural grounds and as possible substitutions of the constitution. The Court allowed the first
amendment, permitting Uribe to won for and win a second term in 2006. But it blocked the
second attempt, holding inter alia that allowance of a third consecutive term would constitute a
substitution of the constitution and thus an unconstitutional constitutional amendment. Uribe
complied with the decision and was replaced with Juan Manuel Santos at the end of his second
term in 2010 (Issacharoff, 2015; Dixon & Landau, 2015).

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 The reasoning of these two decisions mixed consideration of the domestic political
context with sophisticated comparative analysis (Cepeda & Landau, 2017). In the first reelection
decision, for example, the Court noted that allowance of two consecutive terms in office did raise
some risks that the president would abuse his power but held essentially that those risks were far
from certain and fell within a tolerable range. The Court also noted that the amendment required
passage of a new statute that would be aimed at protecting the rights of opposition candidates
within a system where incumbent presidents could seek reelection. It bolstered this consideration
with a comparative analysis showing that permitting two consecutive presidential terms was
fairly normal in other liberal democracies with pure presidential systems. It noted that allowance
of a second consecutive term was common in comparative law within other liberal democratic
systems. Furthermore, it emphasized that no “consensus” had been reached within Latin America
as to the proper scope of presidential reelection.
In contrast, in the second reelection decision the Court held that allowance of three
consecutive terms in office would replace the existing principle of the separation of powers by
creating an unduly strong and unchecked president.5 The Court carefully described the
procedures for selecting all of the various bodies charged with checking presidential power,
including courts, ombudspersons, procurators, and comptrollers. It noted that many of these
institutions had long terms in office and/or terms staggered from that of the president, in order to
preserve institutional independence. Yet it emphasized that with twelve consecutive years in
office, the president would be able to select essentially all of these officials (or the institutions
charged with selecting them), in many cases more than once. The Court also explained the ways
that informal norms in Colombia would increase these risks. For example, it was likely that a
president with 12 consecutive years in office would be able to exercise a dominant influence on
the composition of the Congress. Furthermore, the Court held that an incumbent president who
had already held power for eight consecutive years would likely hold dominating advantages
over any potential opponents, because an incumbent will likely have “greater negotiating power
and higher political recognition” with each additional term he or she serves. Thus, the electoral
playing field would inevitably be very tilted, regardless of any legal guarantees given to
opposition candidates.
These conclusions from domestic constitutional design and constitutional theory were
again bolstered by comparative analysis. Based on regional experience from both inside and
outside of Latin America, the Court concluded that the current Colombian design allowing two
consecutive four-year terms was already at the “outer limit” of common practice, and that going
beyond that limit raised “serious risks of perversion of the regime.” The Court emphasized that
allowing presidents to serve more than eight years in office also seemed to be associated with
executive dominance, in other words with the distorted form of government called
presidencialismo rather than a merely presidential form of government, and with problematic
democratic outcomes. The Court thus prevented Uribe’s attempt to amend the constitution in
order to run for a third term.

5
A majority of the Court also held that the proposed referendum on amending the constitution to allow a third
consecutive term was unconstitutional on a number of different procedural grounds.

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 B. Courts Allowing Amendments to Extend Term Limits: Ecuador 2014

In Venezuela, Ecuador, and Bolivia, high courts turned aside challenges to proposed
amendments easing presidential term limits. In each case, the change would have allowed at least
a third consecutive term in office;6 indeed in Venezuela and Ecuador the proposal was to
eliminate term limits entirely. That is, all three countries already allowed presidents to seek a
single consecutive reelection. In addition, all three countries possessed a tiered constitutional
design that at least potentially would have required such changes to be made using a more
demanding procedure. Courts rejected challenges in each case in part by emphasizing the rights
of voters to select candidates who had previously held office and politicians to seek election
despite having previously held the same post.
The Ecuadorian case is perhaps the most interesting. The 1998 constitution prohibited
consecutive reelection (although non-consecutive reelection was allowed). The 2008 constitution
put in place by the new president Rafael Correa allowed one consecutive reelection and stated
that his term begun before the new constitution went into effect did not count towards this limit.
As the end of Correa’s second post-constitutional replacement term approached in 2017, his
party (which dominated Congress) advanced a package of constitutional changes that included
the elimination of all term limits for presidents and other officials. They sought to use the lowest
level of constitutional change, the “amendment” procedure, which required two-thirds approval
in Congress but elided the necessity of a public referendum. Given the dominance of Correa’s
party in Congress, reaching the required congressional majority was essentially a foregone
conclusion.
As noted above, the Ecuadorian constitution explicitly tasks the Constitutional Court with
the power of determining which procedural route is appropriate for a proposed constitutional
change. Correa’s opponents made a number of strong arguments that the abolition of all term
limits could not be done via the amendment procedure. First, they argued that the change altered
the “fundamental structure” or “character and constitute elements” of the state and thus would
require at least the intermediate procedure called “partial reform,” which would have required a
popular referendum that the opposition felt they could have won (Bernal, 2014). Essentially
adopting the logic of the Colombian Constitutional Court in the second reelection case, they
noted that allowing indefinite presidential reelection would likely lead to a significant formal and
informal increase in presidential power by allowing the executive branch to dominate other
branches of government, including those primarily tasked with checking the executive. Second,
they also argued that the change “restricted constitutional rights and guarantees” and thus could
only be carried out by the most demanding of the three procedures for constitutional change, a
Constituent Assembly. The opposition argued that the change effectively restricted the equality

6
In reality, more than three full terms, since incumbents in each country had overseen the drafting of new
constitutions, and terms begun before new constitutions had gone into effect, via either text or judicial interpretation,
did not count towards the term limit found in the new constitution.

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rights of opposition politicians, parties, and voters by forcing them to compete against long-term
incumbents on what would be a highly tilted playing field.
The Ecuadorian Constitutional Court, which was controlled by Correa’s party, brushed
these arguments aside in its decision allowing the “amendment” route to be used for most of the
proposed constitutional changes, including the abolition of term limits. The Court argued that the
change was more limited that its opponents implied – it retained the same form and institutions
of governments, as well as electoral calendar, and merely allowed existing incumbents to run for
reelection. Moreover, it emphasized the ways in which the change served values that it purported
to find elsewhere in the constitution. The Court held that the right of voters to select an
incumbent who had already held office, and therefore to have a free choice as to their governors,
was a fundamental one, and moreover that previously elected officials had an important rights
interest in seeking reelection. Thus, far from restricting constitutional rights, the Court held that
the change advanced them.
The interesting coda of the Ecuadorian experience is that the proposals ran into
significant political obstacles despite Correa’s dominance in Congress and the judicial ruling
obviating the need for a referendum. When the proposal neared its final-round vote in December
2015, opponents staged massive street protests demanding that the proposal be dropped or that a
referendum be held. In the face of this popular pressure, Correa’s allies made a subtly significant
amendment: they added a provision holding that the abolition of all term limits would only go
into effect after the upcoming 2017 election had been held. This was a key change because it
forced Correa to stand down as a candidate, and he left power after the 2017 election. The
candidate from his movement, Lenin Moreno, won a narrow victory over the opposition, but
Moreno has since broken with Correa and began a process of re-imposition of presidential term
limits in part to stymie Correa’s potential return to power.
In Venezuela and Bolivia, where referenda had to be held as part of the constitutional
amendment process, attempts to radically ease or abolish presidential term limits also ran into
significant popular opposition. A first referendum held by President Hugo Chavez in Venezuela
in 2007 narrowly failed, although a second in 2009 succeeded. And in Bolivia, a 2017
referendum by President Evo Morales also failed, although as noted below the Constitutional
Court subsequently deployed the UCA doctrine to remove the term limit anyway. This suggests
public unease with stretching term limits beyond certain limits even when the immediate
beneficiary would be a popular president.

C. Courts Holding Term Limits to Be Unconstitutional: Honduras (2015)

In a final set of cases, courts have not only paved the way for attempts to ease
presidential term limits but have actually rooted out the term limits themselves by holding them
to be unconstitutional constitutional amendments. Judicial invocation of the UCA doctrine has

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become a major mode of change on this issue, which has been deployed in Costa Rica (2003),
Nicaragua (2009), Honduras (2015), and most recently Bolivia (2017).
These cases all deployed similar reasoning to invalidate term limits – in each case, courts
held that the limits clashed with fundamental constitutional principles and/or with international
human rights law because they restricted the rights of voters and politicians. Nonetheless, the
various cases have differed sharply in terms of their starting and ending points. In Honduras and
Costa Rica, courts acted to eliminate term limits that were extremely strict – allowing only one
term as president in an entire lifetime, and thus prohibiting any consecutive or non-consecutive
reelection. In contrast, term limits before judicial intervention in Nicaragua and Bolivia were
more liberal, prohibiting any consecutive reelection in Nicaragua and limiting presidents to two
lifetime terms, and allowing presidents one consecutive reelection in Bolivia. Furthermore, the
ending points differed across the four cases – in Bolivia, Nicaragua, and Honduras, judicial
intervention left the countries with no presidential term limit at all; in Costa Rica, in contrast, the
judicial decision returned the country to the term limit found in the original constitution, which
prohibited consecutive reelection for two subsequent terms after a person has served as president.
The Honduran case is the most emblematic of this mode of judicial intervention. As
shown in more detail by Muñoz-Portillo and Treminio elsewhere in this volume, the 1982
Constitution limited presidents to only one lifetime term in office, prevented any attempt to
change the no-reelection rule by embedding it in eternity clause, and provided that anyone
attempting to change the term limit would “cease” to hold office and be barred from doing so for
the subsequent ten years. These provisions played a role in the coup that resulted in the removal
from power of President Manuel Zelaya in 2009. After winning election, Zelaya sought to put in
motion a process to replace the 1982 constitution. Although he did not explicitly state that he
sought presidential reelection, his opponents argued that his true intent was to use replacement as
a way to evade the eternity clause, and that the clause could not be changed even through a
process of making a new constitution. When Zelaya pushed forward with plans to hold a “non-
binding consultation” on whether to call a Constituent Assembly despite judicial decisions
prohibiting him from doing so, military leaders arrived at his house one morning shortly before
the vote was to be held and put him on a plane to Costa Rica (Muñoz-Portillo and Treminio, this
volume). A major political argument of opponents of Zelaya who supported the coup was that he
had fallen afoul of the constitutional provision prohibiting attempts to change the term limit, and
thus that he had legally “ceased” to be president (Muñoz-Portillo and Treminio, this volume;
Feldman et al., 2011). One of us served as part of a team of consultants that determined that
argument to be spurious, and the international community largely condemned the removal and
sanctioned Honduras (Feldman et al, 2011).
In 2015, facing the same limitations on his power, President Juan Orlando Hernandez,
thus sought to find another way to relax these requirements. His allies from the now-ruling
National Party turned to the Supreme Court and filed a case arguing that the relevant provisions
of the constitution creating and supporting the term limit were themselves unconstitutional. In
2015, the Constitutional Chamber of the Supreme Court responded affirmatively, holding that
the one-term limit itself, the eternity clause preventing it from being changed, and the anti-

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attempt clause must all be held “inapplicable.” Unlike the Zelaya episode, the Court’s decision
caused no real outcry, and it achieved the key goal of the petitioners: Hernandez subsequently
announced plans to run for reelection, and won reelection in a close election (one opponents
denounced for fraud) in 2017. Indeed, given the existence of the eternity clause and anti-attempt
provision, this decision may have been the only feasible way for Hernandez and his National
party allies to achieve this goal.
The decision was curious for a number of reasons. First, the political context in which the
decision was issued raised significant questions of political pressure. The National party, which
dominated elections after Zelaya’s removal, had replaced four of the five members of the
Constitutional Chamber of the Supreme Court in 2012, after a dispute over decisions the
Chamber had issued on another matter. The packing of the Constitutional Chamber was likely
illegal, since it relied on impeachment powers that the Congress did not possess in the text of the
1982 Constitution at the time. It was this newly reconstituted, or ‘packed’, chamber that issued
the unanimous 2015 decision invalidating the relevant limits on re-election and constitutional
change.7
Second, the Court’s reasoning was problematic in key respects. The Court spoke in the
language of the UCA doctrine, but all of the provisions at issue were not amendments, but rather
parts of the original 1982 constitution.8 The distinction between original and derivative
constituent power can be used to support the UCA doctrine, but an even more difficult set of
arguments is needed to support an argument that a part of the original constitution itself
(presumably the creation of the original constituent power) can be held unconstitutional. The
suggestion of the Chamber was that domestic constitutional norms could be set aside if they
conflicted with fundamental norms of international human rights law such as those found in the
Inter-American system. However, the Chamber made little effort to justify this conception of
constitutional law or to ground it in the Honduran constitutional text.9
The Constitutional Chamber also focused on tension between the anti-attempt clause and
international human rights law. It emphasized, for example, the ways in which the clause under
some interpretations could restrict freedom of expression by punishing speech by political
leaders that criticized the existing rule or argued that it should be changed. These arguments did
not, however, explain why the one-term limit itself was excised from the constitution.
The most striking parts of the opinion sounded in comparative analysis and policy. The
Court noted that the exceptionally strong term limit found in the Honduran constitution was
highly exceptional or “strange” in comparative law – this exceptionality may once have been
justified by the exigencies of the domestic political scene, but the Chamber argued that it no

7
One justice of the Chamber allegedly attempted to change his vote the next day, which would have been significant
because it would have thrown the case to the Plenary of the Supreme Court. But this attempt was denied on the
grounds that the vote already taken was final. See Corte de Honduras abre las puertas a reeleccion presidencial,
Milenio, at http://www.milenio.com/internacional/Corte-Honduras-puertas-reeleccion-
presidencial_0_505749431.html
8
There had been some technical changes to this language, but the core provisions themselves dated back to the
original text of the 1982 constitution.
9
We elaborate on this aspect of the court’s reasoning in Landau, Dixon and Roznai (2018).

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longer had sufficient justification in a contemporary context. Moreover, the Chamber relied on a
report of the Truth and Reconciliation Commission of Honduras, formed after the Zelaya
episode, which noted the difficulties caused by the eternity clause (Feldman et al., 2011). The
clause of course made change of the no-reelection rule extremely difficult; indeed, as the Zelaya
episode highlighted it was ambiguous to domestic actors whether it could be altered even by
wholesale replacement of the existing Honduran constitution. The Chamber thus argued that a
judicial decision setting the clause aside could be justified as a peaceful exit from a constitutional
situation that might otherwise continue to cause social and political conflict.

IV. Transnational Anchoring and Term Limits Decisions in Latin America

Elsewhere, some of the authors of this chapter have sought to explain the divergence in
recent judicial decisions on term limits in the region (Landau, forthcoming) as well as the
relative success of judicial versus popular enforcement of term limits (Dixon & Landau,
forthcoming 2018). That is not our goal here. Instead, we seek normative clarity on the standards
that should inform UCA decisions on this issue.
The core of our normative argument is a concept that two of us elsewhere call
‘transnational anchoring’ (Dixon & Landau 2015). That is, decisions on what changes infringe
core constitutional principles in liberal democratic orders and thus invite utilization of the UCA
doctrine should not be made solely in light of the domestic constitutional system – but also based
on comparison with the constitutional practices of other liberal democratic systems. The more
widespread a constitutional norm or institution is, under this approach, the more courts should
lean toward protecting it from repeal, under the UCA doctrine, or related doctrines; whereas the
more uncommon it is, the less inclined courts should be to invalidate attempts to repeal or alter
it; Where the vast majority of democracies share a certain constitutional practice, this tends to
suggest that the practice is in fact fundamental to – or part of the institutional ‘minimum core’ –
of constitutional democracy; whereas if countries vary widely in their practices, yet still remain
democratic, this may suggest that the practice is not in fact compatible with the maintenance of
constitutional democracy.
Such comparison of course raises difficulties, but not insurmountable ones – judges must
determine which systems are fit for comparison and must carry out comparison in a sophisticated
way that is sensitive to the interaction effects between different institutions and norms (Dixon &
Landau, 2015; Scheppele, 2013). For example, in a decision on presidential term limits, courts
can reasonably limit the denominator to pure presidential systems rather than those where
presidents share power or have a largely ceremonial role, and consideration of appropriate
bounds for term limits must of course consider the scope of presidential power and the power of
other domestic institutions such as courts, ombudspersons, and legislatures.
Comparison of this kind likewise cannot displace or preempt consideration of the
domestic constitutional context – judges might for example find after comparative reflection that

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a given change clashes with core domestic values, even though the change is common in
comparative constitutional law, because of the special significance that a given change has for
national identity or national politics. But comparison can suggest that a change a judge initially
thinks is fundamental enough to activate the UCA doctrine may in fact not be a threat to the
liberal democratic order, because it is common in other liberal democratic constitutions. Or it
may give a judge increased confidence and legitimacy in reaching a conclusion that a given
change does pose such a threat because it is highly uncommon in other liberal democratic
constitutional orders (Bryde, 2006).
Comparative analysis of this kind thus offers courts at least some rough guideposts for
determining the constitutionality of changes to presidential term limits – which can help courts
avoid the dangers of both over- and under-enforcing constitutional limits on changes to existing
presidential term limits. This kind of approach was in fact an important part of the approach of
the Colombian Constitutional court in the First and Second Re-election cases: in the Second Re-
election case the Court’s reliance on domestic constitutional design, and constitutional theory,
was explicitly bolstered by comparative analysis. As noted above, in the first reelection case the
Court’s conclusion was bolstered by comparative analysis suggesting the change being proposed
– from a single lifetime presidential term limit to allowance of two consecutive terms – was
common in well-functioning liberal democratic presidential systems. In the second reelection
case, in contrast, the Court’s survey suggested that allowing two consecutive four-year terms was
the “outer limit” of the common and acceptable range, and that going being this range
significantly raised a risk of hyper-presidentialism and of democratic erosion.
Where presidential term limits are initially extremely strict by prohibiting any
consecutive or non-consecutive reelection, comparison of this kind would suggest that judges
should likely allow at least some efforts to loosen term limits without holding those efforts to be
a UCA. Striking down any loosening of term limits in such a situation raises a significant risk of
over-enforcement of the UCA doctrine. Allowing extremely strict presidential term limits to be
loosened recognizes the variation in practice among pure presidential systems. As the Colombian
Constitutional Court noted in its first presidential reelection decision, some presidential systems
prohibit any reelection, but most do not.
Moreover, and as is well known, there are good reasons for presidential systems to allow
at least some presidential reelection. Non-consecutive reelection might for example act as a
safety valve against the incentive that political leaders might otherwise have to take illegal or
dubious measures to stay in power – if presidents know they can return to power after some
period out of power, they might be more willing to leave power in the first place. In Ecuador, for
example, Correa may have been willing to accept the provision requiring him to stand down
from the 2017 election because he thought he would be able to return to power later.
Furthermore, both non-consecutive and consecutive election might also enhance electoral
accountability by giving presidents greater incentives to pay attention to the will of the electorate
(Carey, 2003). Finally, there is a reasonable case for consecutive reelection in order to give
successful presidents more time to carry out their political mandates (Carey, 2003). We are not
advocating here that any particular design of presidential term limits is optimal. The point

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instead is to recognize – as the Colombian Constitutional Court did – that there are a range of
reasonable solutions, and thus that a court should allow constitutional change within a reasonable
range.
At the same time, comparative experience suggests that some changes to term limits do
raise a serious risk of the erosion of liberal democracy. Recent experience suggests that allowing
indefinite reelection, or its functional equivalent, poses a significant threat to a liberal democratic
order in a pure presidential system. Here again, we think the Colombian Constitutional Court –
in its second reelection case – is closest to the mark. Nearly all presidential (or semi-presidential)
constitutions appear to place some limits on presidential reelection. Where presidents are able to
seek reelection over and over again, their incumbency advantages tend to grow for a number of
reasons, including higher visibility and control of patronage resources. Moreover, presidents who
hold office for very long periods of time will likely find ways to control the appointment
processes for other institutions of state, including those designed to limit executive power.
Institutions such as courts and ombudspersons can then be used to help presidents consolidate
power by harassing and undermining the opposition, rather than carrying out an independent
checking function. The end result is an electoral playing field that is increasingly tilted towards
incumbents, potentially allowing a regime to become “hybrid” or “competitive authoritarian” in
nature rather than liberal democratic (Levitsky & Way, 2010). The Colombian Constitutional
Court thus drew a reasonable (albeit not inevitable) line in allowing one consecutive reelection
but blocking a second.
There are more countries in Latin America that allow indefinite presidential reelection
now than when the Colombian Court issued its decision in 2010. But this experience tends to
confirm the reasonableness of its conclusion that allowing the equivalent of indefinite reelection
in a pure presidential system raises substantial risks to liberal democracy.10 In Venezuela, for
example, term limits were abolished in 2009 during a period in which analysts concluded that the
country had become hybrid in nature (Mainwaring, 2012). President Chavez had used his
continuous control over the country since 1999 to gain control over the judiciary and other
institutions (such as those regulating the media), and those institutions were used to consolidate
his power and weaken the opposition. Chavez’s presidency came to a close only with his death in
2013; since then, his handpicked successor Nicolas Maduro has held the presidency as the
country has slid further into authoritarianism. Similarly, in Nicaragua, the elimination of
presidential term limits has allowed Daniel Ortega to hold the presidency continuously since
2007, again as analysts have concluded that the country has increasingly moved towards
authoritarianism.
We thus think it deeply problematic that a number of courts in the region – such as the
Venezuelan, Bolivian, and Ecuadorian high courts – saw no threat to liberal democracy from
even a major easing or wholesale elimination of presidential term limits, and thus allowed

10
The same appears to be true of presidential or semi-presidential systems outside of the region. For example,
Azerbaijan and Belarus both removed presidential term limits by referendum, and both countries are far from liberal
democracies. In Azerbajian, President Ilham Aliyev has held power since succeeding his father in 2003; in Belarus,
President Lukashenko has controlled the presidency continuously since 1994.

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changes to those limits to proceed using relatively flexible procedures for constitutional change
rather than more demanding procedures. These courts have overlooked the fact that their
preexisting constitutional orders already made fairly liberal allowance for reelection – all three
orders already allowed one consecutive reelection. And they ignored the damage to liberal
democracy that can result from indefinite presidential reelection. At least some radical easing of
term limits – such as their wholesale elimination – should come under scrutiny as potential UCA.
The final question is whether, as some recent regional courts have held, a term limit itself
can ever be a UCA. Comparative experience again tends to reject such a notion. Courts holding
their presidential term limits to be unconstitutional constitutional amendments have generally
framed the elimination or easing of term limits as rights-enhancing, arguing that the change
would advance the rights of voters to freely choose officials and officials to freely run for office.
These have thus been framed as advancing international human rights as well as domestic
constitutional rights.
The Venice Commission, acting at the request of the Organization of American States,
recently gave thorough consideration to these arguments and determined that they lacked
foundation (Venice Commission, 2018). The Commission emphasized that term limits for
presidents are extremely common in presidential and semi-presidential regimes; indeed “[n]early
all” such regimes have them.11 Moreover, the Commission found that there was no freestanding
human right to reelection, and that term limits represented reasonable restrictions on the political
participation rights of both elected officials and voters. In short, the argument that the
elimination of term limits advances political rights lacks foundation.12 Indeed, in many cases it
threatens rights of political participation by making the system appreciably less democratic.
Thus, there is no foundation for holding a presidential term limit to be an unconstitutional
constitutional amendment. Where these limits are already relatively lax and allow some
reelection, as in Nicaragua and Bolivia the arguments that they are UCA are trivial because the
term limits are reasonable limits on rights of political participation. Even where limits are quite
strict and prohibit any consecutive or non-consecutive reelection, as was the case before judicial
intervention in both Costa Rica and Honduras, it seems extremely unlikely to us that they
constitute UCA. From a comparative perspective, one term limits on presidents are not unusual
and may still seem like reasonable restrictions on political participation in light of risks of abuse

11
The Commission noted that such limits are much less common for the Prime Minister in a parliamentary system,
but argued that the difference could be explained because of differences in institutional design and because the risk
of abuse of power was greater in a presidential system since prime ministers could be removed at any time.
12
We also think it relevant that where voters have had a choice recently in Latin America, they have often rejected
radical loosening of term limits, at times even for highly popular leaders. To give a few recent examples: (1) in
Venezuela, despite Hugo Chavez’s personal popularity and control over the media and electoral institutions, voters
first rejected a referendum eliminating term limits in 2007 before approving the measure in 2009; (2) in Bolivia,
voters rejected a 2017 referendum that would have allowed the popular President Evo Morales to run for a fourth
consecutive term; and (3) in Ecuador, massive street protests forced a key alteration of President Rafael Correa’s
plans to eliminate all term limits, and a referendum held by his successor, Lenin Moreno, to reinstate presidential
term limits passed overwhelmingly in February 2018.

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that may be particularly acute in some contexts. Thus, we are very skeptical that there is ever a
case for holding a presidential term limit to be a UCA.
The discussion of the Constitutional Chamber of the Supreme Court of Honduras is
interesting in this light. As noted above, the Chamber conducted at least an implicit comparative
analysis, arguing that the term limit provisions at issue were “strange” in comparative law and
may have made historical sense at one time in light of especially high risks of abuse, but were no
longer justifiable under modern conditions. The Chamber’s analysis is an attempt to apply
transnational anchoring, but it is unconvincing on several key points. The mere existence of a
one-term lifetime limit is not unusual in regional and global terms, but in fact is a fairly common
(although minority) design for presidential and semi-presidential systems. The existence of an
eternity clause protecting the limit from change is potentially more problematic because it might,
as the Chamber noted, make it costlier to achieve change desired by a large majority of the
population. As the Zelaya episode demonstrated, the rigidity and ambiguity inherent in the
eternity clause could exacerbate political and social conflict (Albert, 2010; Freidman, 2010). But
eternity clauses protecting term limits are also not uncommon in comparative constitutional law
– indeed, presidential term limits are frequently objects of protection via an unamendable clause,
especially in emerging or fragile democracies, probably because they are also frequently objects
of abuse (Roznai, 2017; Suteu, 2017). Of the three major dimensions of the Honduran term limit,
the only one that was in fact highly unusual in comparative terms was the anti-attempt provision,
which provided that anyone even attempting to change the limit would cease to hold office and
be barred for a subsequent ten years. Even if the Court were correct that this provision should
have been excised from the constitutional order because of its potentially negative effects on
political speech and participation, this conclusion would provide little support for also erasing
the eternity clause, and even less for removing the underlying one-term limit itself.

V. Conclusion

This chapter has examined the interaction between term limits provisions and doctrines
and designs of unconstitutional constitutional amendment in Latin America. The growth of UCA
doctrines in the region has greatly expanded the interactions between these doctrines and
presidential attempts to ease or eliminate presidential term limits. Thus, a number of recent
regional attempts to change term limits have resulted in judicial decisions applying the UCA
doctrine or interpreting tiered constitutional designs. In some of these cases, courts have blocked
term limit extensions; in others, they have paved the way for presidential attempts to change term
limits; and in a third set, courts themselves have eradicated term limits from their legal order
using the unconstitutional constitutional amendment doctrine.
We also seek to provide normative guideposts for application of the UCA doctrine in
light of transnational constitutional practice. Where courts are confronted with modest extensions
of strict term limits that would allow some consecutive and non-consecutive reelection, they
should reject arguments that the proposed change is a UCA. However, changes moving in the

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direction of indefinite presidential reelection are much more likely to pose a threat to the liberal
democratic constitutional order, and should be treated with more skepticism. They can more
reasonably be blocked as a UCA or subjected to more demanding procedural requirements for
constitutional change. Finally, we are very skeptical of arguments, accepted by several recent
courts, that term limits themselves can be a form of UCA. Our normative analysis thus casts
doubt on many recent Latin American decisions allowing or imposing drastic easing in the scope
of presidential term limits.

References
Albert, R. (2010). ‘Constitutional Handcuffs.’ Arizona State Law Journal 42(3): 663-715.
Albert, R. (2013). ‘The Expressive Function of Constitutional Amendment Rules.’ McGill Law
Journal 59(2): 225-281.
Bernal, C. (2013). ‘Unconstitutional Constitutional Amendments in the Case Study of Colombia:
An Analysis of the Justification and Meaning of the Constitutional Replacement Doctrine.’
International Journal of Constitutional Law 11(2): 339-357.
Bernal, C. (2014). ‘There are still Judges in Berlin: On the Proposal to Amend the Ecuadorian
Constitution to Allow Indefinite Presidential Reelection.’ International Journal of Constitutional
Law Blog, Sept. 10, 2014, http://www.iconnectblog.com/2014/09/there-are-still-judges-in-berlin-
on-the-proposal-to-amend-the-ecuadorian-constitution-to-allow-indefinite-presidential-
reelection/
Bryde, BO. (2006). ‘The Constitutional Judge and the International Constitutionalism Dialogue’
80 Tulane Law Review 203-219.
Carey, J.M. (2003). ‘The Reelection Debate in Latin America.’ Latin American Politics and
Society 45(1): 119-133.
Cepeda, M.J. & Landau, D. (2017). Colombian Constitutional Law: Leading Cases (New York:
OUP).
Colon-Rios, J.I. (2012). Weak Constitutionalism: Democratic Legitimacy and the Question of
Constituent Power (New York: Routledge).
Dixon, R., and Landau, D. (2015). ‘Transnational Constitutionalism and a Limited Doctrine of
Unconstitutional Constitutional Amendment.’ International Journal of Constitutional Law 13(3):
606-638.
Dixon, R. and Landau, D. (2018). ‘Tiered Constitutional Design.’ George Washington Law
Review 86 (forthcoming). https://ssrn.com/abstract=2953755
European Commission for Democracy Through Law (Venice Commission). (2018). Report on
Term Limits Part I – Presidents, Study No. 908/2017, Mar. 20, 2018.
http://www.venice.coe.int/webforms/documents/?pdf=CDL-AD(2018)010-e

18

Electronic copy available at: https://ssrn.com/abstract=3208187

Feldman, N., Landau, D., Sheppard, B., and Rosas-Suazo, L. (2011). Report to the Truth and
Reconciliation Commission of Honduras: Constitutional Issues.
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1915214.
Fombad, C.M. (2007). ‘Limits on the Power to Amend Constitutions: Recent Trends in Africa
and Their Potential Impact on Constitutionalism’. University of Botswana Law Journal 6: 27-60.
Friedman, A. ‘Dead Hand Constitutionalism: The Danger of Eternity Clauses in New
Democracies’. Mexico Law Review 4(1): 77-96.
Issacharoff, S. (2015). Fragile Democracies: Contested Power in the Era of Constitutional
Courts (New York: CUP).
Jacobsohn, G.J. ‘An Unconstitutional Constitution? A Comparative Perspective.’ International
Journal of Constitutional Law 4(3): 460-487.
Landau, D. (2013). ‘Abusive Constitutionalism.’ University of California Davis Law Review
47(1): 189-260.
Landau, D. (forthcoming). ‘Presidential Term Limits in Latin America: Transnational
Constitutional Dialogue as a Double-Edged Sword’. Law and Ethics of Human Rights 12.
Landau, D., Dixon, R. and Roznai, Y. (2018) ‘From an Unconstitutional Constitutional
Amendment to an Unconstitutional Constitution? Lessons from Honduras’. Global
Constitutionalism (forthcoming).
Levitsky, S. and Way, L.A. (2010). Competitive Authoritarianism: Hybrid Regimes after the
Cold War (New York: CUP).
Mainwaring, S. (2012). ‘From Representative Democracy to Participatory Competitive
Authoritarianism: Hugo Chávez and Venezuelan Politics.’ Perspectives on Politics 10(4): 955-
967.
Muñoz-Portillo, J. and Treminio, I. (forthcoming, this volume) ‘The Politics of Presidential Term
Limits in Central America: Costa Rica, El Salvador, Guatemala, and Honduras.’ In Alexander
Baturo and Robert Elgie (eds.), The Politics of Presidential Term Limits (New York: OUP).
Negretto, G.L. (2013). Making Constitutions: Presidents, Parties, and Institutional Choice in
Latin America (New York: CUP).
Roznai, Y. (2017). Unconstitutional Constitutional Amendments: The Limits of Amendment
Powers (New York: OUP).
Roznai, Y. (2013). ‘Unconstitutional Constitutional Amendments – The Migration and Success
of a Constitutional Idea.’ The American Journal of Comparative Law 61(3): 657-719.
Scheppele, K.L. (2013). ‘The Rule of Law and the Frankenstate: Why Governance Checklists Do
Not Work’. Governance 26(4): 559-562.

19

Electronic copy available at: https://ssrn.com/abstract=3208187

Scheppele, K. L. (2018). ‘Autocratic Legalism’. The University of Chicago Law Review 85(2):
545-583.
Suteu, S. (2017) ‘Eternity Clauses in Post-Conflict and Post-Authoritarian Constitution-Making:
Promise and Limits.’ Global Constitutionalism 6(1): 63-100.

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