Introduction
During the Age of Enlightenment, the political and philosophical idea of democracy gained credibility, becoming the preferred political system of nation states. The rise of constitutionalism, which has been one of the defining features of modern political systems, enjoys a similar level of acceptance.
At first glance, constitutionalism and democracy appear to reinforce one another, but there is one area where they stand at a cross: unamendable provisions. By unamendable provisions, or unamendability, we refer to explicit, formal bans of the amendment of constitutional provisions through the normal amendment procedure as established in the constitution. Under the regime of unamendability, the limitless supremacy of the people’s collective action (pure democracy) and majoritarianism’s limits throughS. Michel (&)
Institute of Law and Economics, University of Hamburg, Hamburg, Germany
e-mail: stephan.michel@ile-hamburg.de
I. N. Cofone
McGill University Faculty of Law, Montreal, Canada
e-mail: ignacio.cofone@mcgill.ca
© Springer International Publishing AG, part of Springer Nature 2018 123
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_5 countermajoritarian devices (constitutionalism) stand at odds.[521] One could also see this conflict as affecting the balance between rigidity, as championed by constitutionalism, and flexibility, which is a concept more in line with majoritarianism’s supremacy. The importance of considering this balance between rigidity and flexibility when assessing a constitution has been highlighted in the literature.[522] Furthermore, the amendment procedure’s flexibility has served as a key design variable in studies on constitutional longevity.[523] Unamendable provisions tilt this balance toward constitutionalism, which is noteworthy given the finding that unamendable provisions are increasingly used in constitution-making.[524]
From a doctrinal point of view, unamendable clauses are puzzling.
According to the general principle of lex posterior derogat priori, for all contradicting rules on the same hierarchical level, newer rules trump older rules, and yet unamendable provisions are constitutional clauses that can prevent the enactment of newer provisions. How can one justify that a prior decision prevails over a new one under the same hierarchical level?[525]Moreover, the power to amend a constitution does not fully fit either in the category of a constitutional power, which creates the constitutional order, or in the category of a constituted power, which derives from such constitutional order; the constitutional amending power presents characteristics of both.[526] From this perspective, amending power can be seen as a derived constitutional power, as opposed to an original constitutional power:[527] it holds the power to create constitutional norms, but it is still bound by (mainly procedurally) those very norms. For this reason, although it has been argued that unconstitutional constitutional amendments seem inconceivable from the logic of legal hierarchy,[528] this could possibly occur if the amendment breaches the rules of the original constitutional power that allow for the existence of the derived constitutional power.[529]
Unamendable provisions have been analyzed using two main perspectives. The functional perspective deals with the direct effects of unamendable provisions,
while the expressive perspective focuses on the effects that unamendable provision have through the mere expression of this heightened attention. While recognizing that expressive functions play a key role in explaining the use of unamendable provisions, we focus on a functional perspective.[530]
The functional perspective focuses on drafters’ ability to amend a written constitution and to credibly commit themselves and future generations to the clauses. This statement is inspired by analyzing various discussions of unamendable provisions that have been presented in the literature from such functional perspective, in particular regarding their feasibility and desirability to serve as commitment devices.
Unamendable provisions present a barrier to change the constitution,[531] and given that constitutions are self-enforcing, any barrier to constitutional change requires the commitment to be credible in order to be functional. Elster discusses four potential reasons to use constitutional pre-commitment: overcoming passions and self-interests, overcoming hyperbolic discounting, overcoming strategic time inconsistencies, and ensuring efficiency gains.[532] These four reasons serve as the basis for this analysis.We introduce a new functional theory of unamendable provisions, moving from the idea of credible commitment to the concept of (selfish) paternalism. From the analysis that follows, it will be conjectured that under the framework of Elster there are no reasons that make the use of unamendable clauses desirable. However, even if they are not seen as desirable from this perspective, they are by no means without effect.
While there is a recognizable expressive function of unamendable clauses, a functional perspective of these clauses that relies on interpreting paternalistic or hegemonic policies, rather than simply focusing on the pre-commitment perspective, provides a better perspective when dealing with their direct effect. Drafters cannot predict the preferences of future generations. This fact highlights the reality that unamendable clauses are a means for drafters to impose their own preferences on future generations. The defining feature and underlying difference between these paternalistic and hegemonic policies solely depend on whether the imposition of these preferences is inherently benevolent or selfish.
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