Many constitutions purport to make some provisions immune from ordinary amendment processes. The Constitution of Turkey, for example, states that the character of the country as a secular democracy and republic cannot be changed, and forbids any proposal to amend these provisions. Thailand’s constitution entrenches the monarch as head of state. Other countries purport to prohibit amendments with regard to such features as term limits, official languages and religions, flags and anthems, and the boundaries of sub-national units.
As Javier Couso’s excellent post last week pointed out, Honduras and Chile have some constitutional similarities in this regard that bear further examination. Both countries have entrenched rules in the constitution, including certain unamendable provisions. Both go further in that, like the Turkish example above, they seek to prevent even a proposal to amend the constitution. As we found out in late June when President Zelaya was expelled from his country, the Honduran Constitution provides that any leader who proposes the abolition or amendment of term limits is subject to immediate removal from office. In the Chilean case, the executive or legislative branches are prohibited from calling for a referendum asking the public whether it wants a new constitution. Both of these rules seem designed to squelch constitutional debate. To the extent that fidelity to the constitution has an independent value, these provisions may hinder current citizens from effectuating welfare-enhancing changes that are favored by overwhelming majorities. The rules may thus indirectly encourage overturning the whole constitutional order, as Javier suggested.
I would tentatively suggest that we might begin by distinguishing the substantive provisions being entrenched from second-order proscriptions on debate or proposal of amendments. The latter seem to be of more serious concern, as they freeze the deliberative process that the constitution may be designed to encourage. Indeed, the prohibition on debate may conflict with other parts of the constitution that are of equivalent normative authority, in particular a right to free speech.
On the other hand, a substantive prohibition on amendment may perhaps be best effectuated by nipping proposals in the bud. And some issues such as the religious or republican character of the state may indeed be best handled by removing them completely from ordinary or constitutional politics. But others, in particular the issue of term limits, do not seem so contentious as to prohibit all discussion of them. Term limits, after all, restrict democratic choice. Perhaps the only conclusion then, is that constitution-makers should tread cautiously when purporting to make some provisions unamendable: different issues seem differentially suited to this approach, and second-order prohibitions on debate risk the unintended consequence of premature constitutional death.
Comments
2 responses to “The Puzzle of Unamendable Provisions: Debate-Impairing Rules vs. Substantive Entrenchment”
Tom, interesting post. I am glad to see that people are talking about this topic again, both in Javier’s post, and in several other places.
There appears to be an implicit empirical assumption to your post, which is that taking some–substantive–topics off the table is bad for a constitutional democracy, particularly for its stability. This might be right, but it is at least open to question. There are ways in which, if a constitution has legitimacy, for the constitution to make some topics off limits prevents there from being an open discussion and lobbying for extreme positions, which might be good for a new democracy. This might be what happened with Germany’s Aritcle 79(3) Eternity Clause.
If an idea is very dangerous to the core of a system, then trusting the marketplace of ideas to defeat the idea–i.e. permitting the process of debating the idea but not the substance of the idea becoming binding–might not be effective.
Of course, there is a way in which limiting amendments delegitimates the actual substantive concern for the limitation because it introduces a process objection to the rule limiting amendment. My reading of the basic structure doctrine in India and the debate over that seems to be an example, where certain substantive concerns became at least partially overwhelmed by the objection that a democracy does not limit amendments in the first place.
David Fontana
I’m a little late to the comment thread, but I think in the special case of Latin American Constitutions, it’s important to recognize that there is a history of term limits being the first things to be eliminated by rising dictators. I don’t think it’s unreasonable to think that they need special protection since a removal of term limits is at least as likely to be motivated by surging support for a specific leader than by a developing opinion on the policy of term limits in the abstract. If such an amendment is motivated in the former manner, then the intended function of the Constitutional provision is seriously undermined.