Introduction
All constitutional provisions are not created equal. On the contrary, as the plurality of amendment tracks within constitutions shows, there is an implicit constitutional hierarchy.1 Various functions have been attributed to this plurality.
Just to name a few, plurality creates constitutional distinction, expresses the internal hierarchy of the constitutional rules, and averts or postpones the process of political change, when needed.2 The strictest form of amendment constraints are self-entrenched eternity clauses. By prohibiting the amendment of a provision either implicitly or explicitly, they put the entrenched provisions to the highest level of legal hierarchy.Once eternity clauses are examined as a vehicle to understand amendment constraints, we find that the promise they carry cannot be credible from the
^For a better understanding of the concept of plurality consider the constitution of Canada, which includes four different amendment tracks. See also: Albert (2015a), p. 85.
2Albert (2013), p. 225, 240 f.f. A word of caution is necessary here. Specifically, as later will be made clear the functions mentioned in the text should not be interpreted as an explanation on why legal plurality exists.
K. Pilpilidis (&)
Institute of Law and Economics, University of Hamburg, Hamburg, Germany e-mail: konstantinos.pilpilidis@uni-hamburg.de
© Springer International Publishing AG, part of Springer Nature 2018 63
R. Albert and B. E. Oder (eds.), An Unamendable Constitution?
Ius Gentium: Comparative Perspectives on Law and Justice 68, https://doi.org/10.1007/978-3-319-95141-6_3 perspective of legal philosophy. The credibility problem is founded upon the paradox of self-amendment? Specifically, if the sovereign is omnipotent, then the formal constraint is only an unenforceable promise.
Thus, as long as the governed are aware of the paradox, then the sovereign cannot reap the benefits of credible commitment from introducing eternity clauses and such rules would only exceptionally exist. However, an abundance of constitutions is found to contain eternity clauses, despite the aforementioned paradox.[263] [264] A more plausible explanation is to consider, since unitary actors cannot benefit from eternity clauses, that these clauses must be targeted against non-unitary actors, as the ones found in modern democracies. Specifically, eternity clauses are to be interpreted as constraints intended not for the omnipotent sovereign but for tacit future sovereigns or for the organs to which the sovereign delegates powers with a constitution.[265]Once the who-is-bound is established, we need to establish how. In order to understand the enforcement of eternity clauses by dead framers, one must go beyond the contractarian approach. Lewis distinguishes between two states: acting under a contract, where certain behavior is induced by the existence of a mechanism to enforce compliance, and acting within a convention, where the behavior is induced by a belief that others expect us to act in a certain way and, therefore, will act in a certain way themselves, i.e., complying to what is expect is necessary to reap the benefits of coordination.[266] Since the latter state can be initiated also with long-term contracts, one could make the claim that constitutions can be used as devices for steering/speeding up the creation of conventions. Hardin and Ordeshook argue that to the extent that no actor external to the constitution can exist to enforce the constitutional text, compliance to all surviving constitutions must by definition be a result of the existence of a convention and not a contract.[267]
Ordeshook calls the strength of the convention legitimacy.[268] According to Ordeshook, legitimacy is dependent upon the duration for which a constitution has not been violated. Legitimacy, further, is not reduced, as long as the alterations in the content of the constitution are done pursuant to the amendment rules.
Under this conception of the constitution, even if the constituencies would be willing to bear the costs to change a particular provision, they still have to think whether they are willing to accept the constitutional convention to be rendered obsolete and lose the benefits of the conventional state. In other words, eternity clauses are an instrument to extend the constitutional convention to the content of the constitution.This interpretation, however, brings forth a new question, namely on what grounds is the present sovereign legitimized to constraint the future generations. Until today, the arguments proposed to justify differentiations in the degree of entrenchment are lacking. Theory so far tries to justify the introduction of amendment constraints by assuming a superiority of constitution-making processes in terms of the incentives they provide. This approach is driven by an idealization of constitution-making through a systematic disregard of the divergent interests within the constitutional assembly. Subsequently, the question remains unanswered as to what extent and under which circumstances should constituted powers be allowed to propose such a mechanism.
If one can accept that constitutional constraints influence the distribution of political power after their introduction, then attaining consent on their content should be costly.[269] Under the shadow of limited resources, rational constitution-makers will engrave in the constitution provisions that will allow them to extract the greatest benefits from the constituted state. Therefore, the content of the constitution can be studied as the product of bargaining for rules on how to make rules between rational and free individuals.[270] A further benefit of looking into the constitution as endogenous to the pre-constitutional status quo and the constitution-making process is that theoretical predictions can be formulated on the impact of the constitutional content.[271]
Using rational choice theory, I propose a novel justification in an effort to solve the conundrum of eternity clauses.
I argue that because of the aforementioned divergent interests, manipulation of entrenchment cannot be justified with the arguments provided thus far. Heightened entrenchment can only be justified inasmuch as it averts wasteful spending of resources. Very briefly, constitutional rules have distributional effects, i.e., create winners and non-winners.[272] If non-winners can change their status by amendment, instead of focusing on production they will waste resources in achieving an amendment. Moreover, winners will have to waste resources in order to protect their constitutional endowment. By prohibiting the shift in a specific area, we decrease these waste. In that sense, eternity clauses can be justified as a tool to revert resources from rent-seeking to productive activities.The chapter is structured as follows: In Sect. 2, a definition for unamendability is given and a typology of eternity clauses is proposed that distinguished between the different forms of absolute entrenchment. Section 3 presents the arguments that are used in the literature to justify unamendability. Then, Sect. 4 introduces the rent-redistribution optimization framework. Lastly, the chapter concludes.
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