Eternity Clauses in an Age of Autocratic Legalism

• In Event: Constitutions and Administration in Democratic Theory

Abstract

Eternity clauses, or constitutional provisions that render certain aspects of a constitution immune from amendment, have become ubiquitous in the world. According to one estimate, “approximately four out of every five national constitutions valid at the end of 2015 contained some kind of entrenchment clause” (Hein, 2020).

Most eternity clauses introduced after 1945 draw their inspiration from the eternity clause of the German Basic Law, the creation of which was in large part informed by the (pseudo-)legal way in which the Nazi regime abolished the constitutional order of the Weimar Republic. Though this is now a controversial conclusion, many legal scholars writing in the years following World War II believed that “the Nazis were able to transform the Weimar Republic from a democratic to a totalitarian system through legal means, because there was no concept of an unalterable democratic core” (Weill, 2017). Hence, many of them turned to the doctrine of unamendability to protect German democracy from future autocratic capture.

Thus, as I argue in the paper, given the history of the modern eternity clause, there exists a natural harmony between the concept of militant democracy and eternity clauses. That is, the modern eternity clause has been framed as a tool of militant democracy – or as a tool of democratic regimes that restricts certain political rights and freedoms for the purpose of protecting those regimes from being overthrown by extremists through legal means – from the very beginning. In light of this fact, I propose in this project that eternity clauses should be understood and used explicitly as tools of militant democracy, specifically, against autocratic legalism. Moreover, I argue, it’s through understanding the function of eternity clauses in this way that we can appreciate what eternity clauses can do for modern democracies that other constitutional provisions cannot.

As defined by Kim Lane Scheppele, autocratic legalism captures the phenomenon of “[w]hen electoral mandates plus constitutional and legal change are used in the service of an illiberal agenda” (Scheppele, 2018). Indeed, modern autocrats are doing exactly what eternity clauses are meant to address and prevent: operating behind a mask of legality to consolidate power in the executive office, entrench themselves and their political parties in office, and undermine judicial independence, separation of powers, and certain political liberties and rights.

Thus, while recognizing that eternity clauses are not panaceas, I answer the following questions in this project: What are the potential functions and limitations of eternity clauses in preventing, slowing down, or even reversing the global spread of autocratic legalism? To fulfill these functions, how should eternity clauses be formulated? What rights or principles should be protected by eternity clauses, and at what level of granularity or ambiguity? And under what conditions are they efficacious in protecting liberal democracies from autocratic capture?

I argue that eternity clauses should be kept minimal and specific and protect only democratic institutions and principles and not certain aspects of national identity. When formulated this way, eternity clauses can serve three functions as tools of militant democracy: 1) an interpretive function, 2) an expressive function, and 3) an educative function.

1) They can give constitutional courts something to call upon to stop legalistic autocrats in their tracks and to strike down the amendments that such individuals and their regimes usually propose, such as ones to extend term limits, give the executive branch the power to dismiss parliaments, and increase the number of government appointees they can make. They can also enable constitutional courts to conduct holistic examinations of amendments. Because they find their normative basis in the idea of a constitutional core, to which individual constitutional provisions are subordinate, eternity clauses are uniquely positioned to strike down any amendment that fails to cohere with this core or that disrupts the unity of a constitution.

2) They can express the government’s commitment to certain core principles, upon which the strength of the democracy relies, and signal to democratic publics the importance of the judiciary and judicial independence in protecting democracies.

3) They can constitute a form of civic education and strengthen democratic culture by training democratic publics on what to look for in the actions of would-be legalistic autocrats. Importantly, they can also teach democratic publics that constitutions should sometimes be difficult to amend because constitutions that can be changed at will are constitutions that are susceptible to autocratic capture.

When the functions of eternity clauses are framed and appreciated in these ways, we can perhaps find solace, maybe even hope, in the global spread of eternity clauses in this age of autocratic legalism.

Author

• Chelsea Guo, Princeton University