Eternity Clauses in Democratic Constitutionalism

Abstract

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.

Constitutional Amendments: Comparative (Re)view in Contemporary Constitutionalism

“…First of all, the use of 'eternity' clauses seeks to secure the (un)wanted constitutional amending and is considered a good and ordinary practice of constitutional engineering worldwide (Suteu, 2021). Some researchers indicate that 'eternity' clauses are designed 'to place certain immutable elements of the Constitution beyond the limits of the amending power' (Preuss, 2017).…”

Judiciary Problems in Mature Democratic Countries: American and French Perspectives

“…This contrast is frequently described as a conflict between "thin" and "thick" notions of the rule of law. But generally speaking, a focus on "thin" definitions emphasizes the processes by which regulations are created and administered, whereas "thick" definitions strive to defend rights and position it within a larger human development discourse (Suteu, 2021).…”

“…It varies greatly from country to country how well people understand the function of the judiciary in democratic States, particularly that judges must administer the law impartially and fairly without taking into account external social or political forces. The cornerstone institution necessary for preserving adherence to democracy and the rule of law is an unquestionably honest judiciary (Suteu, 2021).…”

Confronting Populism

“…The first is constitutional in nature. Why not simply enshrine the principles and institutions that are felt to be non-negotiable for any liberaldemocratic order through the use of such constitutional devices as 'eternity clauses' (Suteu, 2021)? It is one thing to engage in comparative constitutional investigation of different constitutional orders in order to identify what features have in certain countries permitted significant 'democratic backsliding', and what features have to the contrary permitted other countries to render themselves relatively immune to the kinds of attacks on democratic institutions and norms that populists are more likely to engage in in virtue of their core beliefs (Bermeo, 2016).…”