Classifying Unamendability
Unamendability comes in many forms. In an important contribution to the study of unamendability, Melissa Schwartzberg classifies unamendability along temporal and formal dimensions.[34] Schwartzberg’s classification turns on two inquiries: whether entrenchment is temporally limited or unlimited, and whether it is formally specified or implicitly enforced.[35] This generates four forms of unamendability: (1) formal, time-unlimited entrenchment; (2) formal, time-limited entrenchment; (3) de facto entrenchment; and (4) implicit entrenchment.[36]
For Schwartzberg, formal, time-unlimited entrenchment refers to a textually entrenched constitutional provision that is not subject to a time limitation, for instance, Portugal’s absolute entrenchment of republican government.[37] Formal, time-limited entrenchment introduces a temporal wrinkle to textual entrenchment: the absolute entrenchment of a given constitutional text expires after a predefined period of time.
As an example, Schwartzberg points to the United States Constitution’s temporary entrenchment of the slave trade until 1808.[38] Under Schwartzberg’s classification, de facto entrenchment refers to a textual provision that is unamendable despite not being textually entrenched against formal amendment and whose “amendment is virtually impossible because of exceptionally high procedural barriers to change.”[39] Finally, implicit entrenchment incorporates the normative view that a norm may be so fundamental to the constitutional order that its amendment would transform the regime. It also incorporates the positive view that a norm has become so deeply embedded as a matter of fact that amending it would be unimaginable.[40] These four forms of unamendability illustrate an important view of how states may entrench constitutional provisions against formal amendment.Yet, there is another possible classification of unamendability. Instead of classifying unamendability along temporal and formal dimensions to yield four forms of unamendability, we can classify unamendability along substantive and procedural dimensions to yield as many as eight forms. The classification we propose interrogates whether entrenchment is specified in the constitutional text—it can be formal or informal—and it also examines whether the amendment restriction applies to constrain what may be changed or how something may be changed. Each of these distinctions can be further refined according to their duration, namely whether they are limited or whether they are intended to last as long as the constitution itself. We can therefore imagine four forms of substantive unamendability: formal or informal substantive unamendability with an expiration date or not. And we can likewise see four forms of procedural unamendability: formal or informal procedural unamendability with an expiration date or not. There are limits to our classification but it offers another way to understand unamendability.
3