The Purposes of Formal Unamendability
These two now-expired temporarily unamendable slave trade clauses reflect one of five purposes of formal amendability: to secure a constitutional bargain.[47] Where political actors reach an impasse on a divisive question of constitutional design, they may choose to make a resolution formally unamendable only for a defined period of time or they may alternatively opt to make an enduring compromise formally unamendable, a constitutional design choice that frees them to deal with other matters of basic governmental structure and function.[48] The use of formal unamendability to secure a constitutional bargain is appropriate for temporary agreements that political actors may choose to revisit after the constitution has been given time to take root in the political culture.[49] It is not uncommon, for instance, for new constitutions to prohibit formal amendments for a fixed number of years immediately upon their ratification.[50]
Formal unamendability may also be deployed for the second purpose: to preserve a core feature of the self-identity of the state.
This preservative function of unamendability privileges one or more constitutional principles, rules, values, structures, or institutions as fundamentally constitutive of the regime. Preservative unamendability reflects the judgment of the drafting generation that the unamendable feature is important at the time of the adoption of the constitution and that successor generations should respect the sacrality of both this founding judgment and the entrenched feature itself.Constitutional states entrench many examples of preservative unamendability. For example, Brazil and Germany both make federalism unamendable as a way both to preserve a governmental structure that has historically been necessary to manage conflict and disagreement, and to recognize its centrality to political life.[51] We can likewise interpret the absolute entrenchment of an official religion, or indeed of secularism, as an expression of the importance of religion or non-religion in that constitutional regime, either as a reflection only of the views of the constitutional drafters or of the views of citizens as well.
Algeria and Iran make Islam unamendable as the official state religion, whereas Portugal and Turkey establish secularism as an unamendable feature of the state.[52] Both reflect a founding value intended to be preserved.In contrast to its preservative function, formal unamendability may also be used to transform a state. This is the third purpose of unamendability. Transformational unamendability seeks to repudiate something about the past and to adopt a new operating principle that will shape and inform a new constitutional identity.[53] This is sometimes more of an aspiration than a justiciable commitment, but it reflects a value seen as important enough by the authoring generation to make it unremovable from the constitutional text. Transformational entrenchment is intended to reflect the state’s commitment to pursuing the values served by the entrenched constitutional provision and to urge respect for the entrenched provision by present and future political actors, present and future citizens, as well as present and future external actors.
Constitutional states entrench many examples of transformational unamendability. For example, under the new Bosnian and Herzegovinian Constitution, all civil and political rights are formally unamendable,[54] in contrast to the regime that predated the new constitution.[55] The Ukrainian Constitution today likewise makes all rights unamendable,[56] something that would have been unimaginable before the new constitution came into force.[57] As a final illustration, consider the Namibian Constitution, which makes rights and liberties unamendable,[58] also in contrast to its own problematic past infringements on rights.[59] These examples suggest how formal unamendability may be used to help transform a state’s default posture from rights infringement to rights enforcement.[60] Although formal unamendability cannot by itself defend rights from abuse, it can express the significance that constitutional designers attribute to rights enforcement along with their hope that their successors will ultimately and durably agree.
Fourth, formal unamendability may be a reconciliatory device.
The purpose of reconciliatory unamendability is to achieve peace by absolving factions and their leaders of criminal or civil wrongdoing in an effort to move past conflict and discord. For example, reconciliatory unamendability is illustrated by a formally unamendable grant of amnesty or immunity for prior conduct leading to a coup or an attempted one. By conferring amnesty upon political actors, constitutional designers seek to avoid a contentious and potentially destabilizing criminal or civil prosecution of wrongdoers by putting prosecution off the table altogether. The goal is instead to allow opposing factions to start afresh, free from threat of legal action, and sometimes in tandem with a Truth and Reconciliation Commission to give victims the opportunity to record their memories but without the consequence of legal duty and violation.[61] An example of reconciliatory unamendability is the now-superseded 1999 Constitution of Niger, which entrenched an unamendable amnesty provision for those involved in two coups—on January 27, 1996 and April 9, 1999—in order to give the new constitutional settlement a chance to succeed without the looming threat of the governing party prosecuting the opposition for earlier acts.[62]The fifth purpose of unamendability is related to each of the others: to express constitutional values. Where a constitutional text distinguishes one provision by making it immune to the formal amendment rules that ordinarily apply, the message both conveyed and perceived is that this provision is more highly valued than those not granted protection.[63] Whether or not the absolute entrenchment of a given provision is intended to be enforceable, unamendability is nevertheless an important statement about the value, either objective or subjective or both, of the provision to that constitutional community. It is the ultimate expression of importance that can be communicated by the constitutional text. For example, the Cuban Constitution’s absolute entrenchment of socialism is a statement of the importance of socialism,[64] just as the Afghan Constitution’s absolute entrenchment of Islam and Islamic Republicanism reflect its highest constitutional values,[65] according to the authors of these constitutions. The expressive purpose of unamendability differs from its transformational purpose, the latter entailing a temporally prior social or political referent that the unamendability seeks to repudiate. The expressive purpose need not necessarily reflect a repudiation of the past; it may instead reflect altogether new values without reference to an old or superseded constitutional order or text.
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