An Expressive Device with a Functional Effect

The previous section offers arguments that raise reasonable doubt about the desirability of using unamendable provisions simply for what the functional per­spective would call credible pre-commitment.

We have already pointed out that the entrenchment unamendable provisions offer is not absolute since citizens can always decide to draft a new constitution.^[591] One might argue that whenever a substantial majority agrees to dispose of an unamendable provision, they will do so by writing a new constitution; this argu­ment seems to reduce the potency of unamendable provisions. However, this rea­soning ignores the costs of renegotiation discussed in the previous section. While a large majority might agree on a single provision, its members could still have different preferences for the rest of the constitution. Redrafting the whole consti­tution would allow every single provision to be negotiated again while amending it avoids this risk. As an example, one could think of a society with two groups, one rich and one poor. The groups might agree to change a provision that is unrelated to their distributional conflict, but if the whole constitution is to be redrafted, both sides would prefer to shift the constitution’s balance in this area as well. Knowing that this conflict can be very costly, they might refrain from redrafting in the first place. Therefore, in this scenario, unamendable provisions would have a strong functional effect. This finding leads to the question of what motivates drafters to put them in the constitution in the first place, given that, as it was discussed above, they are not desirable as commitment devices.

We assume that drafters not only care about the expressive effects of una­mendable provisions but have a functional aim in mind. Even if one argues that they are mainly in place for their expressive use, looking at the side effects of these expressive clauses can help gain a better understanding of potential underlying reasons for the visible increase in the use of unamendable provisions. To evaluate this functional aim, one has two options: to consider that the drafters are benevolent when writing the clauses and to consider that they are not.

If the drafters are benevolent, we can infer that they will use unamendable provisions paternalistically to improve the welfare of future generations. Using constitutional constraints is self-binding only if the drafters anticipate that future political agents will prefer to be restricted for the same reasons that motivate the drafters to install the unamendable provision in the first place.^[592] This argument is particularly relevant for provisions that fall under preservative entrenchment. It has been argued that preservative entrenchment can be compared to an originalist interpretation of the constitution, at least in spirit.^[593] Originalism can be argued to incorporate certain paternalistic traits, which also establishes a link between paternalistic policies and preservative entrenchment. In both cases, the will of the drafters dominates subsequent generations, supposedly for their own good.

Transformative entrenchment is another area in which this paternalistic behavior fits well. In this area, drafters may aim to improve the lot for future generations, for example after bad experiences, and move society into a better direction. The post-World War II constitutions of Germany and Italy are good examples to illustrate this argument. Looking back at the failure of their respective authoritarian central states, and to transform their respective societies, Germany drafted a con­stitution that entrenched federalism (among other provisions), while Italy entren­ched republicanism.^[594]

However, this behavior might be myopic or at least naive because it shows a lack of concern for the changing preferences of future generations.

A different option does not require the assumption that drafters are myopic, but rather questions their motives for using unamendable provisions. Assuming that drafters are rational and act strategically, the explanation that compares una­mendability to paternalism drafters falls apart. Under the assumption of rationality and self-interest, drafters will only make provisions unamendable if they expect to benefit from it.

We have argued that the standard credible commitment explanations do not sufficiently explain the functional use of unamendable provisions and, therefore, another strategic motive must be used to explain drafters’ behavior. Using the analogy of hegemonic preservation regarding the judiciary’s increasing power through judicial review of constitutional issues may shed some light on the issue.^[597] On that account, the political elites empower the judiciary to fortify their current political power and to limit the power of standard democratic policy mechanisms to overturn the current political hegemony. In the case of unamendable provisions, the drafters, who can be seen as the current political elite threatened by subsequent changes in political power, aim to secure their preferences by making certain provisions unamendable. Like the hegemonic preferences argument, the key explanatory factor is the protection against the threat of losing political power.

The discussion of constitutional theories versus constitutional interests might shed some light on the two arguments offered above.^[598] In one case, the drafters are seen as using a device which, in their own understanding, will be beneficial for posterity. The problem is not constitutional interest, but rather constitutional the­ories which are not aligned with the real workings of the device that they are using. The second case is an example of constitutional interests at work. The drafters, in this case, are fully aware of the way in which the unamendable provision will affect future generations, but their own interest and the benefit they gain from either its expressive or its functional value supersedes their concern for future generations.

We have argued that unamendable provisions are not useful as pre-commitment devices but they might be desirable as paternalistic devices for the drafters. To analyze specific unamendable provisions, it appears to be more fruitful to analyze the motives for using unamendable provisions from this paternalistic perspective rather than through the perspective of credible commitment. When analyzing from the paternalistic perspective, pessimistic assumptions about the motives of drafters appear to be more consistent with reality. While the self-interest of drafters seems to be a natural part of the drafting process, their naivety and myopia appear to be rather constructed to fit a preferred story about impartiality and selflessness that is otherwise rare in politics. The empirical finding that the executive power was involved in the constitution-making process in more than 50% of all constitutions promulgated between 1789 and 2005,^[599] seems to support the idea that drafters use unamendable provisions to extend their influence and power to the time after the end of their executive duties, and goes against the idea that drafters are benevolently paternalistic and selfless. This shift in the functional explanation of unamendable provisions would modify the scope in which these provisions are normatively justified.

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