Constitutional Pre-commitment and Unamendability

The purposes of unamendable constitutional provisions have been discussed extensively.^[538] Examining these purposes, Albert distinguishes between preservative entrenchment, transformational entrenchment, and reconciliatory entrenchment.^[539] Preservative entrenchment focuses on the past and aims to prevent the change of a historical situation, irrespective of social or cultural changes.

Roznai builds on Albert’s terminology by creating a taxonomy with five cate­gories. The five categories are preservative, transformative, aspirational, conflictual, and Bricolage.^[540]

Preservative provisions aim to enshrine a certain part of the constitution that has already been established in a society. One example of this could be protecting an existing form of government or protecting democracy. This situation is among the most typical of pre-commitment and is also a justification of constitutions from the perspective of commitment in general.^[541]

Transformative provisions, on the other hand, aim to install a new institution or a new value set. A bill of rights in a society with a record of human rights violations would be an example for this kind of provision.^[542]

Aspirational provisions—the third category—are similar to transformative pro­visions, but have a more demanding purpose. These provisions look at past defi­ciencies in a society and imagine a better society to which the drafters aspire. Both categories aim to establish new conventions in a society. The goal of aspirational provisions, however, is to change existing (formal or informal) institutions through the means of a written constitution, while the goal of transformative provisions is to create entirely new institutions.

The fourth category, conflictual provisions, concerns provisions that aim to manage conflicts. It has been proposed elsewhere that constitutions are devices for conflict resolution.^[544] Typical provisions for this category would include gag rules and amnesties to prevent the resurfacing of previous conflicts.^[545] Protecting amnesties through an unamendable provision makes them a more credible com­mitment toward the conflict’s losing side.^[546]

The final category, Bricolage, captures the increasing phenomenon of consti­tutional transplants. Time is the drafters’ scarcest resource, and on occasion, they reduce their own drafting costs and use what is at hands. Thus, unamendable provisions can spread via this mechanism from jurisdiction to jurisdiction and be included for no deeper reason other than expediency. What is common among these categories (except for this last category, Bricolage) is that they require the una­mendable provision to be a credible commitment to be able to fulfil the declared function.

Interestingly, Roznai’s first four categories map neatly onto the four reasons for constitutional pre-commitment described by Elster. Preservative provisions are mainly employed to thwart self-interest and prevent passionate moments from destroying the fundamental framework of the constitution. Transformative and aspirational provisions are put in place to ensure efficiency gains through the new clause as well as to overcome hyperbolic discounting problems of implementation and strategic time inconsistencies. Finally, conflict management through amnesties is a typical example of preventing strategic time inconsistencies. If, for example, continued conflict is still a serious threat, an autocratic elite might be afraid that the majority’s promise of an amnesty is rescinded once they step down from power.

Since the Roznai’s categories are in harmony with the Elster’s reasons, it might be useful to go through the four categories again with a specific focus on how one might use this harmony to justify the use of unamendable provisions.

The desire to overcome passions and interests rests on the assumption that a society might make rushed decisions during a time of chaos when passions tend to be exacerbated. In a democracy, it would be difficult to prevent a majority from making decisions in these passionate moments. Constitutional devices can be useful here by offering the means to eliminate options or create delays in the decision-making process allowing for a cooler, more rational decision after the moment of crisis has passed.^[547] Furthermore, the supermajorities requirement and a separation of powers are instruments to prevent rushed decisions as well as to limit interest groups’ ability to monopolize the decision-making process. Unamendable provisions can be seen as devices to (1) generate delays in the sense that drafting a new constitution takes a longer time than simply amending an existing one, and to (2) eliminate options from a possible set of actions that politicians might take. One example would be protecting basic rights against the passions and interests of a majority through an unamendable provision that guarantees those rights.^[548] This device is, for example, used in the German Basic Law, where Article 1, guaran­teeing basic rights, is made unamendable by Article 79 paragraph (3).

The second reason Elster discusses is hyperbolic discounting.^[549] A typical illustration of hyperbolic discounting might be the introduction of a costly educa­tional reform, which is delayed to a later point in time due to short-term consid­erations even though the government knows it will be advantageous in the long-run. Once the later point arrives, new short-term considerations might again hinder implementation.

The issue of strategic time inconsistency deals with the credibility of promises made by the future government. Whenever the state has a monopoly of violence, the question arises of how governments can be prevented from abusing this monopoly in the future without losing the ability to act as impartial enforcers.^[552] A typical solution for this dilemma is establishing a separation of powers, to generate checks and balances. Choosing a form of government and a political setup to ensure a separation of powers is a key area in which a constitution can serve as a com­mitment device against the future abuse of governmental powers. The form of government and the political system’s structure are typical cases where unamend­able provisions are used.^[553]

Finally, another reason for constitutional pre-commitment is to ensure the political process can be carried out more efficiently. A more stable political regime enables a longer time horizon and improves the ability of citizens to engage in long-term activities, such as growth-generating investments. One example for this would be the requirement of supermajorities to change constitutional provisions. As long as no coalition obtains a large majority, citizens can build expectations based on rules that are protected by a supermajority requirement. It is typically the case that some form of supermajority requirement governs the amendment process, either through the percentage of votes in a single chamber or through a form of bicameralism. In Germany, both chambers need to approve a constitutional change with a two-thirds majority according to Article 79 of the Basic Law.^[554] An una­mendable provision would hence serve to prevent cyclic changes with the hope of increasing stability.

Following the discussion of how unamendable provisions can be linked to the reasons for collective pre-commitment, the next section goes through the four reasons again and analyzes whether unamendable provisions are effective devices to achieve the aforementioned aims of constitutional pre-commitment or whether they have major drawbacks of their own. The next section further discusses the question whether unamendable provisions should be used to commit to a core set of values (in other words, the spirit of a constitution).

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