Eternity and the constitution: the promise and limits of eternity clauses

Abstract

This thesis sets out to investigate whether eternity clauses—unamendable provisions in constitutions—are democratic. It proceeds to answer this question in two parts. The thesis's first three chapters look at eternity clauses' foundations and at the substantive values they protect, in an effort to ascertain whether unamendability and democracy may be reconciled based on these provisions' origins and normative content. The thesis's latter two chapters are concerned with identifying process-based alternatives to, or ways out of, unamendability. They call into question the possibility of revolution to do away with eternity clauses and also provide an initial investigation into the relationship between the macro-trends of rigidity and popular participation present in constitution-making today. The argument ultimately put forth is that eternity clauses and democracy remain in a state of tension with each other irrespective of the manner in which they are adopted, of the values they protect, and of the fact that they may in theory be repealed via a new constituent moment. This is because they institute a hierarchy of norms within constitutions, which is then zealously guarded by constitutional courts with or without an explicit mandate to do so. More often than not, that hierarchy contains first-order value commitments of the polity which these courts can only review with reference to judicial ideology rather than any objective standard of review. This is the inevitable outcome of the logic of unamendable entrenchment, and not merely its exception.