Constitutions are the legal base of almost all modern political systems.1 They set up the core institutions of the state (the head of state, the government, the parliament, the courts, etc.) and define their responsibilities. The most important basic principles within constitutions are the rule of law and democracy. In addition, constitutions limit the state. Whereas, society is protected via basic rights and government interventions are strictly regulated and focused on protecting these fundamental rights.
Such modern constitutions have spread throughout the world since the second half of the 18th century, beginning in North America and Europe. The oldest constitutions known to man, are the 1776-1784 constitutions of the 13 former British colonies in North America, which founded the United States of America with the adoption of a federal constitution in 1787. The first European constitutions followed in Poland and France during 1791. During the 18th century, constitutions gradually spread across every continent. Today, only three countries have no single constitutional document: the United Kingdom, Israel and New Zealand.2
However, the actual relevance and effectiveness of constitutions varies greatly. In numerous consolidated democratic states, constitutions shape the political and legal reality considerably. In contrast, constitutions in "defective" democracies and dictatorships are legally implemented, but very limited in their application. In particular, enforcement of constitutional law is under constant political reserve. Finally, in "failed" states, in which the state institutions have none or only local effectiveness (such as Somalia or Afghanistan), constitutions are worth little more than the paper they are written on.
Nevertheless, constitutions can today be considered as "global standards". For decades, the creation of new states or the establishment of new political orders have almost always been accompanied by the establishment of a new, or at least reformed constitution. Additionally, the aforementioned constitutional principles can also be seen as global standards. Even in North Korea, democracy and a (socialist) rule of law are key constitutional principles (whatever that means in practice).
From entrenchment to eternity clauses
Another common feature of almost all modern constitutions, is that they are harder to change compared to the other legal norms. In general, increased majorities in Parliament are required (mostly either a two-thirds or three-quarters majority) to change the constitution. Often, the changes also have to be confirmed via a referendum or by the following newly elected Parliament. The aim of these rules, is to make it a lot more difficult for politicians to make changes on a daily basis. Therefore, on the one hand, democracy and the rule of law fall into specific and unresolvable tension. However, on the other hand, democracy is somewhat protected, because it cannot be eliminated by just a simple majority vote.3
Many constitutions go one or even two steps further. Particular individual norms or groups of norms, face additionally increased hurdles to change and are sometimes even declared unchangeable. One example of the first variant of constraints on amendments or "entrenchment clauses", can be found within the Bulgarian Constitution of 1991. Basically, this could be changed with a parliamentary majority of three quarters. However, certain constitutional provisions, such as the state structure or central fundamental rights, can only be modified by a specially elected Constitutional Assembly, the so-called "Grand National Assembly".4 One example of the second variant, the prohibition of amendments (or "eternity clause") is written into the French Constitution of 1958. It declares the republican form of government, as immutable.5
Constraints and prohibitions of amendments, can already be found in the earliest modern state constitutions. Thus, the constitutions of the two subsequent US states: Delaware and New Jersey, declared central fundamental rights, the principles of state organisation and a prohibition of the state religion, as unchangeable (1776).6 The first European eternity clause is still valid to this day and holds the world record for this. According to the Norwegian Constitution of 1814, constitutional amendments may never "contradict the principles embodied in this Constitution, but solely relate to modifications of particular provisions which do not alter the spirit of the Constitution".7 The world's first entrenchment clause is also still valid today: The US Constitution of 1787, specifies "that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate", whereas other constitutional amendments are possible with the approval of three-quarters of all states.8
Today, constraints and prohibitions of amendments can be found in the vast majority of the world's constitutions. Within the 193 currently valid constitutions, 71 contain entrenchment clauses (36.8%) and 59 contain eternity clauses (30.6%). 12 even have both (6.2%). Only 51 constitutions contain neither of them (26.4%). Regional patterns are evident: Almost all former French colonial states in Africa have a change prohibition regarding the republican form of government, which is modelled on the French Constitution. In contrast, almost all former British colonies have relatively complex structured entrenchment clauses of a similar structure. These patterns appear to reflect uniform contexts of origin of the post-colonial constitutional systems.
Do entrenchment and eternity clauses matter ?
Although constraints and prohibitions of amendments, can be found within the earliest modern constitutions, they have diffused significantly slower than constitutions themselves. Out of the 119 constitutions enacted until 1840, only seven contained entrenchment and nine contained eternity clauses (13.4% in total). These were only found on the American continent, except for Norway, already mentioned above. Entrenchment and eternity clauses are typical elements of new constitutions today. Within 52 of the newly enacted constitutions since 2000, 24 possess amendment bans, 13 contain entrenchment clauses and two contain both (75% in total).
Despite this, one might ask what consequences such regulations have. This question can be answered on at least two levels. On a symbolic level, constraints and prohibitions of amendments, attempt to protect a state's constitutional identity by making it more difficult or even legally impossible to change the constitution. For instance, the German Basic Law declares amendments inadmissible that would affect "the division of the Federation into Länder, their participation in principle on the legislative process, or the principles laid down in Articles 1 [human dignity and human rights] and 20 [democracy, welfare state, rule of law, and federalism].9
The Parliamentary Council implemented this amendment ban in 1949, with regard to a supposedly legal incident, when the Nazis undermined the Weimar Republic's constitutional order. Creators of the Basic Law were very aware that such a clause would not prevent a renewed slide into dictatorship. However, it should ensure that any such dictatorship, would not be able to operate underneath a "mask of legality". "No revolutionist should be able to claim that the Constitution was legally set aside", said Thomas Dehler, who later became Germany's first federal justice minister.10
As all constitutional rules, entrenchment and eternity clauses rely on the actual obedience of citizens. If this is true, then their effect is not limited just to the symbolic, but it also unfolds onto a factual level. This is particularly evident when conflicts occur over constitutional reform. For example, the Bulgarian Constitutional Court issued several decisions between 2003 and 2005, extensively interpreting the aforementioned entrenchment clause regarding the state's structure. Subsequently, several elements of judiciary reform were actually unachievable, despite being backed by a large parliamentary majority. A similar situation happened in the Romanian Constitutional Court in 2014, when it prohibited numerous constitutional amendments due to a violation of the comprehensive eternity clause within the Constitution of Romania.11
The impact such clauses have on the stability and dynamics of constitutions in general, is yet unknown. Political scientists and legal scholars are unaware of the broad historical and current distribution of such clauses. For example, Horst Dreier noted in his otherwise extremely well informed study of the German Basic Law, that before 1949 only a few precursors of the German eternity clause are known, mostly solely related to the set up of the government.12
During this period, eternity clauses can be found in at least 75 constitutions.13 In addition to the questions about the historical distribution and the empirical effects entrenchment and eternity clauses have, several questions remain unanswered: When was the idea of such clauses created? What do these clauses contain? Why are they created during the constitution-making process? And finally: What are the normative pros and cons regarding their adoption?
Sooner or later entrenchment and eternity clauses must yield to the "normative power of the factual" – to use a famous quotation from the legal scholar Georg Jellinek (1851-1911).
Can constitutions "eternalise" themselves?
One is tempted to answer this question immediately with a simple "no": How should a potentially very old text effectively instil a sense of obligation upon current politicians? Unsurprisingly, there were cases where eternity clauses were not only ignored, but even legally changed. For instance, this happened in Portugal during 1989, when an amendment prohibition introduced in 1976, was simply abolished.14 In a nutshell: Sooner or later entrenchment and eternity clauses must yield to the "normative power of the factual" – to use a famous quotation from the legal scholar Georg Jellinek (1851-1911).15
If it was so simple, however, it would be unclear how such clauses have developed so successfully within the history of modern constitutionalism. Did creators of constitutions actually become more naive over time? Should entrenchment and eternity clauses only be understood symbolically? Or do such clauses actually have much greater 'factual power of the normative', as one would intuitively expect? One should never say never.
Author: Dr. Michael Hein, Political Scientist. Humboldt Post-Doc Fellow at Humboldt University Berlin, currently researching the role of entrenchment and eternity clauses within modern constitutions.
[1] Cf. Hans Vorländer: Die Verfassung. Idee und Geschichte, 3rd edition, München 2009.
[2] In New Zealand, central constitutional norms are consolidated within the "Constitution Act".
[3] As seen in Hungary recently: There was a government majority of more than two-thirds of the votes, from 2010 to February 2015. Therefore, it was able to change the constitution (and even enact a new one) without controls and as often as required.- Cf. Tóth, Gábor Attila: Macht statt Recht. Deformation des Verfassungssystems in Ungarn, in: Osteuropa, Berlin 2013, Vol. 63, No. 4, pp. 21-28.
[4] Artt. 153, 155, 157 and 158 of the Bulgarian Constitution - 12th July 1991, URL: https://www.constituteproject.org/constitution/Bulgaria_2007?lang=en, 06.05.2015.
[5] Art. 89, § 5 of the French Constitution - 4th October 1958, URL: https://www.constituteproject.org/constitution/France_2008?lang=en, 06.05.2015.- This change prohibition was already introduced in the 1884 constitution.
[6] Art. 30 of the Delaware Constitution - 21st September 1776, URL: http://avalon.law.yale.edu/18th_century/de02.asp, 03.03.2015; Art. 23 of the New Jersey Constitution - 2nd July 1776, URL: http://avalon.law.yale.edu/18th_century/nj15.asp, 03.03.2015.
[7] § 121 of the Norwegian Constitution - 4th November 1814, URL: https://www.constituteproject.org/constitution/Norway_2014?lang=en, 03.03.2015.
[8] Art. V of the US Constitution - 17th September 1787, URL: https://www.constituteproject.org/constitution/United_States_of_America_1992?lang=en, 03.03.2015.
[9] Art. 79, § 3 of the German Constitution - 23rd May 1949, URL: https://www.constituteproject.org/constitution/German_Federal_Republic_2012?lang=en, 03.03.2015.
[10] Cf. Dreier, Horst: Gilt das Grundgesetz ewig? Fünf Kapitel zum modernen Verfassungsstaat, München 2009, p. 59.
[11] Art. 150 of the Romanian Constitution - 21st November 1991 (as amended on 31st October 2003), URL: http://www.cdep.ro/pls/dic/site.page?id=371, 03.03.2015; cf. Dąborowski, Tomasz: Romania: a constitutional reform fiasco?, URL: http://www.osw.waw.pl/en/publikacje/analyses/2014-02-19/romania-a-constitutional-reform-fiasco, 03.03.2015; Regarding Bulgaria cf. Hein, Michael: Verfassungskonflikte zwischen Politik und Recht in Südosteuropa. Bulgarien und Rumänien nach 1989 im Vergleich, Baden-Baden 2013, pp. 131.
[12] Dreier, Grundgesetz (supra, note 10), pp. 60.
[13] Hein, Michael: Forever, temporary, situational? Towards a typology of entrenchment clauses in modern constitutions, Paper presented at the 7th Central and Eastern European Forum of Young Legal, Political and Social Theorists (27th to 28th March), Sofia 2015.
[14] Art. 288 of the Portuguese Constitution - 2nd April 1976, URL: https://www.constituteproject.org/constitution/Portugal_2005?lang=en, 03.03.2015.
[15] Jellinek, Georg: Allgemeine Staatslehre, 3rd edition, Berlin 1914, p. 338.
