Concluding Remarks: ‘Which in Our Case We Have not Got’?

Some years ago, Professor David Feldman drew a parallel with a poem by Henry Reed—a parody of British army basic training during World War II, which suffered from a lack of equipment at the time—to underline the different nature of the UK constitution as opposed to written constitutions.^[520] Addressing his fellow citizens, he described the essentials of a written constitution and finally added: ‘Which in Your Case, You Have Not Got’.

We have asked ourselves in the introduction of this chapter, whether the same holds true for constitutional unamendability. Whether such a concept is something that inherently belongs to legal systems that have a strong tradition of judicial review. It seems to us that most legal scholars, in painting a picture of the concept of constitutional unamendability, rely rather heavily on legal systems that have installed a constitutional court, or at least a supreme court with strong powers of judicial review. It would be useful, to our mind, to conceptually distinguish between—what we have provisionally coined—politically and judicially enforced constitutions. In the United Kingdom and the Netherlands, the concept of consti­tutional unamendability seems, at first sight, to be fully out of place. To quote Reed again: ‘Which in Our Case We Have Not Got’.

But is that really true? We think not. We have argued that there are mechanisms, both in the UK and in the Netherlands, that mitigate the effects of amendments to the constitution that might be considered at odds with its essential features. These are not formal mechanisms, nor do they make it entirely impossible for legislatures to change the constitution. Rather, they are a covert version of unamendability in the way that they tend to divert the legislative amendment from its original course, towards a more benign settlement. The nature of this kind of unamendability is thus somewhat different from the unamendability that regularly features in comparative constitutional law.

We have argued that the norm against amendment, in these cases, is not a legal or binding rule but a constitutional convention. It reflects the idea that the legis­lature will not abolish or significantly alter a given constitutional arrangement. The enforcement of such a convention is a matter of judicial disobedience. It will not always be available or practical. In this, it might conceptually differ from the enforcement of the more well-known forms of unamendability. But eventually, we do not think that this difference will amount to much in practice. Whether law or convention, the enforcement of the idea that some parts of the constitution are ‘eternal’ is highly problematic and of a political nature.

Our research has, however, been anything but exhausting. It first has been limited to only two constitutional systems. Other politically enforced constitutions, such as those of the Nordic countries and Japan, may have somewhat different features, which may be included in further scholarship on unamendability in politically enforced constitutions. Second, the model of constitutional conventions that we outlined in this chapter could be further refined. Our future efforts should be directed towards a better understanding of the political nature of unamendability. The main objective of our chapter was to show the relevance of unamendability doctrine to politically enforced constitutions. The constitutional convention model might serve an important purpose here, perhaps even far beyond the realm of politically enforced constitutions.

Acknowledgements We are grateful to Richard Albert and Bertil Emrah Oder for the opportunity to present our paper at the Ko? University & Boston College Law School ICON-S Workshop on unamendable constitutional provisions. We thank the participants of the workshop and an anonymous peer reviewer for their helpful advice. Naturally, the usual disclaimer applies