The rise of populism in Central and Eastern Europe as a broader democratic crisis – Developments in Hungary, Poland and Romania indicate failure of representative politics post-1989 – Reorienting politics towards a deliberative democratic culture can help answer the bottom-up critique exploited by populists – Citizen-centric deliberative approaches take seriously long-standing discontent with liberal democracy and can provide an alternative to populism
This chapter examines eternity clauses as mechanisms of constitutional precommitment and as tools for defending democracy in the face of anti-democratic forces. It looks at two broad categories of eternity clauses: provisions protecting state fundamentals and provisions defending democratic pluralism. It also analyses understandings of unamendability as either merely descriptive or as preservative of a core of liberal constitutionalism by assessing the operation of eternity clauses in practice. This chapter discusses unamendable provisions as dealing in imponderables and enshrining values that need judicial specification. It shows how precommitment and militant promise are entirely dependent on other elements of the constitutional architecture, in particular constitutional review. The chapter explains how this results in court self-empowerment and unduly limiting the scope of permitted constitutional change in the name of democracy.
This book makes a critical contribution to the growing literature on constitutional unamendability, as well as to the broader scholarship in the field of comparative constitutional change. It represents a unique analysis of unamendability in democratic constitutionalism that engages critically and systematically with its perils, offering a much-needed corrective to existing understandings of this phenomenon. This book takes seriously the democratic challenge that eternity clauses pose and argues that this goes beyond the old tension between constitutionalism and democracy. It adopts a contextual approach that allows for more nuanced understandings of constitutional amendment rules and substantive limits on amendments. It also looks beyond the usual suspects typically discussed in this literature and brings to the fore a variety of case studies from non-traditional jurisdictions. Together, these insights illuminate the prospects of unamendability fulfilling its main intended aim, that of protecting constitutional democracy.
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