Reasons for Constitutional Pre-commitment
By disallowing the amendment channel, unamendable clauses raise the costs of future options. Modifying a constitution will always come at a lower cost than redrafting the document as a whole.
This leads to two questions: how pre-commitment is motivated in social sciences, and whether these motivations are transferrable to unamendable clauses.At the individual level, pre-commitment is a relevant part of the everyday lives of people and it has been the subject of legal discussions in various fields.[533] Contracts are a typical device to credibly commit in business, and marriages represent commitment devices in the area of love. The concept of pre-commitment, as one can see, is nothing new to evaluate in legal debates.
The concept of pre-commitment can also be used to evaluate collective decisions in which a society as a whole decides to bind itself for future decisions. When considering the concept of a contract as a commitment device, we might distinguish between contracts made between different collective groups and contracts made within a single collective group. International treaties are an example of the first type of contracts. A constitution is often likened to a social contract that commits the members of a society to follow a specified set of rules and, in this way, is an example of the second.[534] The key difference between individual pre-commitment and collective pre-commitment through constitutions is that constitutions, unlike most means of pre-commitment, may bind others, or they may not bind at all.[535] This argument goes back to the paternalism argument mentioned in the introduction.
Collective pre-commitment has the ability, at the same time, to do more and less than individual pre-commitment, depending on the issue at stake. The prime examples are preventing a preference change in the future (where collective pre-commitment can achieve less) and aims different than binding “oneself” (where collective pre-commitment can achieve more).
First, since a society is in constant change, (births, deaths, and migration of its members) it undergoes constant preference changes. While an individual might want to maintain a specific set of preferences regardless of changes in experiences, it seems unjust to force younger generations to maintain the preferences of older generations.[536] Second, collective commitment (for example, in the form of a constitution) can also be abused to bind others instead of binding oneself.[537] One example would be constitutional drafters who anticipate that they will not be in the majority once an election under the new constitution takes place. They might put excessive limits on the future government, not to bind themselves, but to bind the other groups that will have the majority in the future.The analysis of constitutions and their provisions from the viewpoint of constraint theory, and in particular as pre-commitment devices, has been pioneered by Elster. His reasons for collective pre-commitment have been discussed in the introduction. Before linking these reasons to unamendable provisions, it is important to delineate the aims of unamendability in general.
3