Justifying Eternity Clauses

Prima facie, substantive eternity clauses are counter-majoritarian, inasmuch as they limit the will of the People to constitutionally change the rules set by the framers. Ramseyer explaining the introduction of counter-majoritarian institutions and specifically an independent judiciary claimed that politicians driven by the fear of electoral loss want to be able to entrench their favored policies against future majorities.

A result of this kind of self-constraint is the constitutional crisis of the Czech Republic in 2009. In short, a constitutional-unfriendly majority—the government with the two largest parties—wanted jointly to pass an ad hoc constitutional act to activate a faster earlier-election-track. However, not all political actors were in agreement. Subsequently, the opposition invoked the eternity clauses in front of the constitutional court to avert the unconstitutionality.^[303]

Moreover, eternity clauses are also connected with another normative discus­sion. It has yet to be made clear, on what grounds the present sovereign is legit­imized to give up something that it does not possess, namely the power of all future sovereigns to amend the constitution. Jefferson states that “the earth belongs [...] to the living”.^[304] The dead hand problem, as it is coined, is the problem that framers, who might be long dead, have set the rules by which the current generation has to live.^[305]

One way to avoid the problem is to say that eternity clauses do no such thing. As became clear in the case of Crimea, an eternity clause protecting something (in the Crimean case the territorial integrity of Ukraine) is not enough to avert the ful­fillment of the will of a self-determining majority (for secession).^[306] Such a solution, however, is underplaying the significance of eternity clauses.

In the next subsections, I will use eternity clauses as the extreme form of amendment constraint to look into the logical limits of the arguments provided so far, in order to legitimize the trade-off between flexibility and precommitment. Then, in Sect. 3.2 an alternative justification will be proposed. Specifically, it will be shown that eternity clauses can only be justified through their ability to avert rent redistribution. This will be called the rent-redistribution optimization theory.

3.1 Protective Theories

The first strand of the literature will be classified as the protective theories. This strand justifies eternity clauses through their role in protecting exceptionally fair rules.^[307] As a mechanism for the framers to impose a rule on future majorities, the introduction of eternity clauses has been claimed to be desirable because consti­tutions are emplaced in times when everyone is acting in a far-sighted and selfless fashion, the so-called constitutional moments.^[308]

The merits of having eternity clauses, under this naive conception of constitu­tionalism, lie in the belief that eternity clauses protect democracy from itself. During constitutional moments, individuals will introduce exceptionally fair regu­lation, because their myopia is lifted and they disregard their short-term benefits. In order for this far-sighted regulation to promote freedom and stability, it needs to be protected from the short-sighted majorities.^[309] Constitutionalism to that extent is justified because of a time inconsistency problem. Specifically, the problem that a rule introduced today might be changed tomorrow in a moment of weakness as the preferences do not remain intertemporally the same.^[310] The figures of Ulysses tying himself to the mast while in port, Peter Sober binding Peter Drunk are only a few picturesque examples used in the literature to describe this goodwill precommitment.^[311]

Sadly, a look at the birth of constitutions does not seem to give evidence in favor of the existence of eye-opening inspirational precedents.^[312] In addition to that, if constitutional moments induced benevolence, then selecting the members of the assembly, setting constraints and subjecting the proposal to a referendum would lead to the same text compared to a constitution written by a dictator acting under no constraint.

Even under a less naive conception of framers, a protective function for eternity clauses is hard to justify. The most influential protective theories looking into framers as self-serving individuals are the veil theories. The first to use individual decision making under risk in order to formulate theories on societal choices was Harsanyi.^[316] However, Rawls was the first to coin the term veil of ignorance for the required oblivion in order to reach universally fair rules.^[317]

Because Rawlsian ignorance, compared to Harsanyi, is normative and, therefore, has little predictive power, Brennan and Buchanan inspired by the idea of the veil proposed a different veil, namely the veil of uncertainty.^[318] Their theory in a nutshell claims that in the state of anarchy, if individuals cannot accurately predict the distribution of political power in the ordered society, they will be able to agree upon fair rule-making processes. Moreover, they claim that the thickness of the veil can be manipulated by individuals. Applying this theory implies that the entire con­stitution should be bargained under the shadow of eternity.

First, by thickening the veil through expanding the time horizon of a rule (durability) to eternity^[319] it can be made sure that the rules introduced would rep­resent the fairest realizable rules under the current constitutional assembly. Second, since constitution-making is conducted when the veil is thicker and procedural rules are used to thicken the veil—something that is impossible for constitution amending—the initial content of the constitution should be protected from majorities acting outside the veil.

This theory is too stylized to predict the content of actual constitutions. Diverse relative preference-intensities in the post-constitutional setting, different degrees of risk affinity or different forms of uncertainty might still keep a constitutional assembly from introducing fair rules.^[320] By pushing the time horizon and increasing uncertainty, parties emerge, which are unwilling to commit themselves eternally from their current position. Such parties might block constitutional bargaining.^[321] For example, in post-conflict situations, when constitutions are mostly needed, even agreement on the interim constitution is difficult. In such circumstances, if the levels of violence are sufficiently high even a shorter time horizon, through sunset clauses, is necessary to achieve agreement.^[322] Subsequently, allowing an eternal horizon to infiltrate the deliberation might sabotage constitution-making.

Even if for a minute, we forget the prohibitive costs of bargaining for an eternal constitution and assume that for (inexplicable) reasons the content of a constitution is indeed exceptionally fair, we cannot agree with the Lockean claim that there is a fundamental constitution, which shall be and remain [...] forever.^[323] Although against such a claim, an abundance of arguments can be brought, I will focus on the most straightforward and undisputed, namely the fact that institutions change because of many reasons; one of them being also learning.^[324] Even if the framers were indeed acting under the best conditions to introduce the fairest rules they can conceive, they are still limited by their cognitive capacities and their priors. Leaving the rational choice paradigm, Hayek claims that constitutions are not the result of rational design but the result of trial and error.^[325] Even if that is not the case, still due to innovation and progress, the ideal social and moral setting for today might not remain ideal for tomorrow.

To sum up, as has been made clear, entrenching with the aim to preserve benevolent regulation is at best a dubious claim. First, we cannot expect regulators to be benevolent so as to give them the power to absolutely entrench. Second, even if by a fluke framers introduce benevolent regulation, we cannot be certain that this regulation will be intertemporally optimal.

3.2 Expressive and Signaling Theories

If we cannot be certain that the constitution content is or will remain optimal, amendment procedures are needed to enable the recalibration of the imperfect constitution in order to avert a violent change.^[327] To that extent, one can argue, that such procedures are a practical expression of humility by the framers. Although the first best would be another unamendable ideal constitution, they admit that they could only come up with and agree to a lesser constitution and therefore they allow its optimization through the amendment procedure. That failure need not be blamed on the inadequacy or the ill-nature of the framers but it can also be the result of the nonexistence of such a constitution.

Expressive theories would claim that eternity clauses are the mirror image of amendment procedures. Through them, framers express their belief that the rule need not be further improved through a process of trial and error. The rule is seen as the truest representation of the values and principles upon which the country is built and strives to function. Albert calls this function, the expressive function of amendment rules.^[328] Expressive theories claim that unamendability is simply a mechanism for states to narrate their collective political identity into existence.^[329]

If the sovereign gains intrinsic benefits by expressing a certain identity, eternity clauses are subsequently justified by the mere will to express this identity.

One should, however, distinguish between pure expression and signaling. Although protective theories implicitly assume that the optimal constitutional set­ting is universal and unique, such an assumption is unrealistic. Were that the case, given sufficient time all constitutions would converge. However, they do not. Voigt argues that constitutions are the product of a spontaneous process of creation and abolition of institutions.^[330] Therefore, constitutions are better analyzed as a choice between the various bargaining equilibria (attainable settings) produced by an institutionally constrained process. In this context, signaling is used to make the choice of equilibrium salient to groups external to constitution-makers. The prob­lem of signaling legal continuity under change is in nature the same as the so-called ship of Theseus puzzle, formulated by Plutarch.^[331] Constitutions, as the ship of Theseus, might have almost all of its initial parts amended. By stating which amendment would constitute constitution-making, the question to when the pre­vious constitutional setting becomes obsolete and continuity is lost can be simply answered by asking whether eternity clauses have been breached. To that extent, the unamendable part of the constitution as a supra-constitution becomes its genetic code^[332]

In economic theory, signaling is necessary inasmuch as hidden information could deter from utility-increasing transactions.^[333] If states can signal legal conti­nuity, despite enabling change, they gain advantages internally and externally. Externally continuity enables the accumulation and acquisition of reputation on an international level.^[334] Internally, if citizens can expect legal continuity and consis­tency, then they will be more willing to do long-term investments. Moreover, signaling what was the minimum content for the framers bears also other infor­mational benefits. Specifically, it enables a more fine-grained understanding of the subjective valuations and hierarchy of the constitutional provisions in constitutional showdowns.^[335] Moreover, if the subjective valuations as the foundations of the constitution become superfluous and outdated due to the spontaneous evolution of informal institutions, the political actors are forced, instead of disparately patching the problems, to fix the whole.

Although signaling theories are more realistic than the benevolence theories, they themselves face various shortcomings. First, the signal from eternity clauses is a noisy signal. It signals namely legal continuity even in cases of severe change in the legal order and therefore does not suffice for the differentiation between amendments and constitution-making. Specifically, constitutions through eternity clauses create a second puzzle, the puzzle of Tib and Tibbles (also known as the Dion and Theon Puzzle).^[336] The philosophical conundrum is asking which is the initial entity that survives a reduction process, the whole (constitution) or whether by defining a separate entity from the parts (supra-constitution), we actively make the whole a supplement to the part.

Looking in Greek constitutional history for a practical example, after the military coup, the junta wanted to signal that their actions were aimed at resolving the constitutional instability. For that reason, the new dictatorial constitution—intro­duced in September 29, 1968—contained the eternity clauses of the 1952 consti­tution (Art. 108) protecting the form of government as a royal democracy (Art. 137 of 1968 Constitution). Nevertheless, the king was already ousted from the country by the regime since December 14, 1967. This behavior is at first sight paradoxical. However, looking it from a signaling perspective, the regime tried by claiming that the genetic code of the constitution was preserved to avoid paying the cost of breaking continuity.

Both expressiveness and signaling are problematic. They are rather a description than a viable criterion for the justifiability. Framers are given a free reign to choose what they consider important or what they want to signal and how. Nevertheless, without additional criteria, i.e. on what grounds is this choice made and under which constraints should it be allowed, these theories do not tell us anything on justification. Subsequently, expressiveness and signaling cannot shed light on what constitutes unjustified entrenchment.

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