Conclusion

This chapter has shown that unamendable provisions are more easily understood when thought of as paternalistic devices rather than as pre-commitment devices. An analysis from this perspective highlights the problems that unamendable provisions face.

These results imply that the key problems that lessen the desirability of una­mendable provisions from a functional perspective relate to the change of prefer­ences over time and the risk of abuse by selfish drafters. These problems can be more generally seen as the risks of strong entrenchment and would also apply, to a limited degree, to alternatives such as the entrenchment simulator proposed by Albert.^[600] However, limiting the potentially damaging impact of unamendability should not be considered a negligible feature. Further mitigation is offered both by sunset clauses with a duration of less than a generation, as proposed in the entrenchment simulator, and limits on the ability of drafters to hold political office after the drafting process to reduce their self-interest’s impact.

Given that unamendable provisions are still strong in our constitutional reality, the question of how to mitigate the potential damage from the aforementioned problematic aspects arises. It has been argued that constitutional courts play a crucial role in this setting.^[601] On the one hand, they need to protect the constitution and prevent extra-constitutional actions by citizens but, at the same time, they should arguably protect the right of self-determination.^[602] To protect this right, courts could stop enforcing problematic unamendable provisions thereby bringing them into desuetude.^[603] However, this behavior would give enormous power to an unelected body.

In addition, there are no clearly established criteria to determine whether an unamendable provision is problematic enough for the courts to interfere. A final determination concerning the degree to which courts might limit the risks we have discussed, and whether that benefit is worth the cost of granting (informal) amendment powers to an unelected group of individuals, goes beyond the scope of this discussion. It can be said, however, that the courts are one of the key actors when it comes to the (non-)enforcement of unamendability.^[604]