Constitutional Handcuffs

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Boston College Law School Faculty Papers
January 2010
Constitutional Handcuffs
Richard Albert
Boston College Law School, [email protected]
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Richard Albert. "Constitutional Handcuffs." Arizona State Law Journal 42, (2010): 663-.
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CONSTITUTIONAL HANDCUFFS
Richard Albert †
TABLE OF CONTENTS
I. INTRODUCTION......................................................................................664
II. CONSTITUTIONAL ENTRENCHMENT.......................................................668

A. Degrees of Permanence .................................................................670
B. Entrenching Permanence ...............................................................672
III. POPULAR RETRENCHMENT ....................................................................678

A. Preservative Entrenchment ............................................................678
B. Transformational Entrenchment ....................................................685
C. Reconciliatory Entrenchment.........................................................693
IV. THE ENTRENCHMENT SIMULATOR ........................................................698

A. The Expressive Function of Entrenchment ....................................699
B. The Challenge of Constitutional Democracy.................................702
C. Designing Constitutional Democracy ............................................706
V. CONCLUSION .........................................................................................714
† Assistant Professor, Boston College Law School; Yale University (J.D., B.A.); Oxford
University (B.C.L.); Harvard University (LL.M.). For helpful discussions and useful
suggestions at various stages of this project, I am grateful to Bruce Ackerman, Majdjy Fawzy
Al-Qaramany, Bethany Berger, Lynda Wray Black, Karen Breda, Aaron Bruhl, Joel Colón-
Ríos, Hillary Greene, Kent Greenfield, Lee Harris, Christoph Henkel, Gabriel Hindin, Allan
Hutchinson, Brian Kalt, Richard Kay, K. Adam Kunst, Daryl Levinson, Sanford Levinson, Peter
Lindseth, Jason Mazzone, Vlad Perju, Leah Roffman, Larry Solum, Sascha Somek, Paul Sousa,
Mark Tushnet and Catharine Wells. I have benefitted immensely from the comments I received
in the course of presenting an earlier draft of this Article at faculty workshops hosted by the
University of Connecticut School of Law, the University of Iowa College of Law and the
University of Memphis School of Law, and at the 2010 Annual Meeting of the Law and Society
Association. I am also grateful to Boston College Law School for so generously supporting my
research. Finally, for their excellent editorial work on this Article, it gives me great pleasure to
thank the Arizona State Law Journal and its team of editors, particularly Melissa Bogden, Sarah
Olson, Masha Shmuckler and Jared Sutton.
664 ARIZONA STATE LAW JOURNAL [Ariz. St. L.J.
I. INTRODUCTION
The advent of the written constitution has given rise to an enduring
tension in constitutional statecraft pitting constitutionalism against
democracy. 1 Constitutionalism strikes a decidedly antagonistic posture
toward democracy, restraining democracy by fastening handcuffs on its
exercise and imposing limits on its expression. Where democracy celebrates
the limitless horizons of collective action, constitutionalism takes a more
skeptical view of popular movements, moderating its enthusiasm for active
citizenship with careful vigilance for the dangers of majoritarianism. That is
the very function of countermajoritarian constitutional concepts like bills of
rights, judicial review and the separation of powers.
Democracy, in contrast, rejects this tyranny of the countermajoritarian
minority and aspires to break free from the chains that constitutions shackle
around it. For democracy, legitimacy flows neither from natural law nor
moral truth but only from the freely given consent of the governed. The
highest ambition of democracy is therefore to reflect civic preferences
through majoritarian participatory politics.
Constitutional architects have constructed innovative constitutional
devices to palliate the tension between constitutionalism and democracy.
Their function is to insulate majoritarian popular will from judicial
invalidation. Some of these devices confer upon legislatures the power to
limit the scope of judicial review. 2 Others narrow the range of judicial
1. The tension sets liberal constitutionalism in opposition to procedural democracy. See,

e.g., Steven P. Croley, The Majoritarian Difficulty: Elective Judiciaries and the Rule of Law, 62
U. CHI. L. REV. 689, 701–02 (1995); James E. Fleming, The Missing Selves in Constitutional
Self-Government, 71 FORDHAM L. REV. 1789, 1793 (2003); James E. Fleming, Constructing the
Substantive Constitution, 72 TEX. L. REV. 211, 219 n.35 (1993); José Julián Álvarez González,
Another Look at the Discretionary Constitution, 71 REV. JUR. U.P.R. 1, 22 (2002); Samuel
Issacharoff, Constitutionalizing Democracy in Fractured Societies, 82 TEX. L. REV. 1861, 1861
(2004); Robert Justin Lipkin, Which Constitution? Who Decides? The Problem of Judicial
Supremacy and the Interbranch Solution, 28 CARDOZO L. REV. 1055, 1061 (2006); Frank I.
Michelman, Brennan and Democracy, 86 CAL. L. REV. 399, 400 (1998); Irwin P. Stotzky, The
Role of a Free Press and Freedom of Expression in Developing Democracies, 56 U. MIAMI L.
REV. 255, 256 n.2 (2002); Cass R. Sunstein, Constitutionalism and Secession, 58 U. CHI. L. REV.
633, 636 (1991). But see JED RUBENFELD, FREEDOM AND TIME: A THEORY OF CONSTITUTIONAL
SELF-GOVERNMENT 163 (2001) (advancing a theory of constitutionalism as democracy);
Stephen Holmes, Precommitment and the Paradox of Democracy, in CONSTITUTIONALISM AND
DEMOCRACY 195, 197 (Jon Elster & Rune Slagstad eds., 1988) (arguing that constitutionalism
and democracy are mutually reinforcing).
2. See, e.g., CONSTITUIÇÃO FEDERAL [C.F.] [Constitution] tit. IV, ch. 1, sec. IV, art. 52(x)
(Braz.) (authorizing the Senate to limit the scope of a judicial decision); Part I of the
Constitution Act, 1982, Schedule B to the Canada Act 1982, ch. 11 § 33(1) (U.K.) (authorizing
Parliament or provincial legislatures to suspend the application of a judicial decision).
42:0663] CONSTITUTIONAL HANDCUFFS 665
authority. 3 Still others have emerged organically in the course of the judicial
process. 4 What unites all of them is their purpose: to signal to citizens that it
is citizens themselves—and not the institutions of the state—who possess
the sovereignty to chart the constitutional course of the state.
Perhaps no constitutional mechanism more mightily captures this power
of sovereignty than the constitutional amendment procedures enshrined in a
constitutional text. 5 Indeed, the authority to amend the constitution is the
best democratic answer to the enduring tension in constitutional statecraft
between constitutionalism and democracy because the rules governing
constitutional amendment unmistakably resolve this tension in favor of
democracy—by giving citizens the key to unlock their constitutional
handcuffs.
But some modern constitutions have instead resolved this tension in
favor of constitutionalism. Constitutional designers have, in both the civil
and common law traditions, expressly designated certain constitutional
provisions unamendable. 6 Unamendable constitutional provisions are
3. See, e.g., New Zealand Bill of Rights Act 1990, 1990 No. 109, Part 1 §§ 4(b), 6
(compelling the judiciary to interpret a parliamentary law in a manner that avoids invalidating
it); United Kingdom Human Rights Act of 1998, § 4 (authorizing the judiciary to issue
declarations of incompatibility but not to invalidate legislation).
4. See DAVID M. BEATTY, THE ULTIMATE RULE OF LAW (2004) (tracing the development
of proportionality analysis).
5. See Donald S. Lutz, Toward a Theory of Constitutional Amendment, 88 AM. POL. SCI.
REV. 355, 355–57 (1994).
6. Scholars have used various terms for these unamendable provisions. For instance,
some have called them eternity clauses. See, e.g., Robert J. Delahunty, The Battle of Mars and
Venus: Why do American and European Attitudes Toward International Law Differ?, 4 LOY. U.
CHI. INT’L L. REV. 11, 29–30 (2006); James J. Killean, Der großbe Lauschangriff: Germany
Brings Home the War on Organized Crime, 23 HASTINGS INT’L & COMP. L. REV. 173, 186–87
(2000); Donald P. Kommers, German Constitutionalism: A Prolegomenon, 40 EMORY L.J. 837,
846 (1991); Manfred Zuleeg, What Holds a Nation Together? Cohesion and Democracy in the
United States of America and in the European Union, 45 AM. J. COMP. L. 505, 510 (1997); Peter
L. Linseth, Book Review, 25 L. & HIST. REV. 229, 229–30 (2007) (reviewing MICHAEL
STOLLEIS, A HISTORY OF PUBLIC LAW IN GERMANY 1914–1945 (Thomas Dunlop trans. 2004)).
Others have called them perpetuity clauses. See, e.g., Gunnar Beck, The Idea of Human Rights
Between Value Pluralism and Conceptual Vagueness, 25 PENN ST. INT’L L. REV. 615, 615 n.2
(2007); Colin B. Picker, International Law’s Mixed Heritage: A Common/Civil Law
Jurisdiction, 41 VAND. J. TRANSNAT’L L. 1083, 1093 n.46 (2008); Richard Stith,
Unconstitutional Constitutional Amendments: The Extraordinary Power of Nepal’s Supreme
Court, 11 AM. U. J. INT’L L. & POL’Y 47, 48 n.5 (1996). Still others call them nonamendable
clauses. See, e.g., William E. Forbath, The Politics of Constitutional Design: Obduracy and
Amendability A Comment on Ferejohn and Sager, 81 TEX. L. REV. 1965, 1982 n.65 (2003);
Burt Neuborne, Constitutional Court Profile: The Supreme Court of India, 1 INT’L J. CONST. L.
475, 495 n.84 (2003); Vijayashri Sripati, Toward Fifty Years of Constitutionalism and
Fundamental Rights in India: Looking Back to See Ahead (1950–2000), 14 AM. U. INT’L L.
REV. 413, 440 n.155 (1998).
impervious to the constitutional amendment procedures enshrined within a
constitutional text and immune to constitutional change even by the most
compelling legislative and popular majorities. They are intended to last
forever and to serve as an eternal constraint on the state and its citizens.
Paradigmatic examples of unamendable constitutional provisions read, for
example, that republicanism “shall not be a matter for constitutional
amendment,” 7 amendments to federalism “shall be inadmissible,” 8 or that
the secularism of the state “shall not be amended, nor shall [its] amendment
be proposed.” 9 Let us call these provisions entrenchment clauses. 10
Entrenchment, as I see it, serves three purposes. First, entrenchment
clauses are deployed to preserve certain structural features of the state. For
instance, an entrenchment clause may preserve federalism, republicanism,
secularism or some other constitutional structure. I call this preservative
entrenchment. Second, in addition to preserving an important element of the
7. COSTITUZIONE [COST.] [Constitution] art. 139 (Italy).

8. GG art. 79(3) (F.R.G.).
9. TÜRKIYE CUMHURIYETI ANAYASASI [Constitution] part I, art. 4 (Turk.).
10. This term is not new. See, e.g., Alexander Hanebeck, Democracy Within Federalism:
An Attempt to Reestablish Middle Ground, 37 SAN DIEGO L. REV. 347, 363 (2000); John R. Vile,
Truism, Tautology or Vital Principle? The Tenth Amendment Since United States v. Darby, 27
CUMB. L. REV. 445, 496 (1996); Scott J. Bowman, Comment, Wild Political Dreaming:
Constitutional Reformation of the United States Senate, 72 FORDHAM L. REV. 1017, 1028
(2004); see also David Fontana, Comment, A Case for the Twenty-First Century Constitutional
Canon: Schneiderman v. United States, 35 CONN. L. REV. 35, 44 n.41 (2002) (discussing the
theory of entrenchment). There exists, however, some ambiguity in the literature between an
entrenchment clause and an entrenched clause. In my view, the best reading of these terms
suggests that the former is the mechanism that entrenches the latter. But not all scholars agree.
Compare Charles A. Kelbley, Are There Limits to Constitutional Change? Rawls on
Comprehensive Doctrines, Unconstitutional Amendments, and the Basis of Equality, 72
FORDHAM L. REV. 1487, 1529 (2004) (referring to entrenched clauses as entrenchment clauses),
and Sydney Kentridge, Civil Rights in Southern Africa: The Prospect for the Future, 47 MD. L.
REV. 271, 277–78 (1987) (same), and Yoram Rabin & Arnon Gutfeld, Marbury v. Madison and
its Impact on Israeli Constitutional Law, 15 U. MIAMI INT’L & COMP. L. REV. 303, 313 n.30,
313 n.34 (2007) (same), with Anthony D’Amato, Legal Uncertainty, 71 CAL. L. REV. 1, 28 n.59
(1983) (correctly, yet implicitly, distinguishing between entrenched and entrenchment clauses);
Ernst Willhelm, Review of Australian Public Law Developments, 30 MELB. U. L. REV. 269,
270–71 (2004) (same). In these pages, I will refer to entrenched clauses as entrenchment clauses
in the interest of consistency. For a helpful discussion of the distinction between entrenched
clauses and entrenchment clauses, see Jason Mazzone, Unamendments, 90 IOWA L. REV. 1747,
1818 (2005); Akhil Reed Amar, Philadelphia Revisited: Amending the Constitution Outside
Article V, 55 U. CHI. L. REV. 1043, 1044 n.1 (1988); Frank I. Michelman, Book Review, Courts
and Constitutions: Thirteen Easy Pieces, 93 MICH. L. REV. 1297, 1303 & n.27 (1995)
(reviewing RESPONDING TO IMPERFECTION: THE THEORY AND PRACTICE OF CONSTITUTIONAL
AMENDMENT (Sanford Levinson ed., 1995)); see also Matthew S.R. Palmer, Using
Constitutional Realism to Identify the Complete Constitution: Lessons from an Unwritten
Constitution, 54 AM. J. COMP. L. 587, 609–10 (2006) (correctly distinguishing between the two
types of clauses but using the term entrenching instead of entrenchment).
state, entrenchment may be used to transform the state by helping to paint a
portrait of the state not as it is, but as it could be. This type of entrenchment
clause guarantees a broad spectrum of rights and liberties that once were
foreign to the state but now are new additions to its constitutional
vocabulary. I call this transformational entrenchment. And third, an
entrenchment clause may advance the cause of reconciliation between two
or more previously warring factions which have joined together in peace to
form a new or reconstructed state. This final type of entrenchment—which I
call reconciliatory entrenchment—absolves members of these factions of
prior wrongdoing and renounces all future claims to criminal or other
penalties.
Although constitutional states avail themselves of entrenchment in the
service of purposes that some may deem laudable, 11 entrenchment clauses
nonetheless violate the fundamental promise of constitutionalism. They
undermine the legitimacy of constitutionalism by throwing away the key to
unlock the handcuffs that constitutions attach to the wrists of citizens. There
is something therefore quite unsettling about entrenchment clauses. They
deny citizens the democratic right to amend their own constitution and in so
doing divest them of the basic sovereign rights of popular choice and
continuing self-definition, all of which makes entrenchment clauses deeply
troubling for democratic theory, and doubly troubling for democratic
practice.
A constitution is a window into the soul of the citizenry, a mirror in
which citizens should see themselves and their aspirations reflected,
precisely because it is citizens themselves who should give continuing
shape and content to their constitutional text. Entrenchment, in contrast,
short-circuits this fundamental premise of the larger promise of
constitutionalism. Constitutionalism—and its attendant constitutional
amendment rules and other innovations designed to palliate the tension
between constitutionalism and democracy—should preserve for citizens the
powers of self-definition and redefinition that give democracy its meaning.
Loughlin puts it well when he declares that a constitution is “not a segment
of being but a process of becoming.” 12 Yet entrenchment presupposes the
contrary: that the essence of a constitution must be frozen into permanence.
11. See, e.g., BRUCE ACKERMAN, WE THE PEOPLE: FOUNDATIONS 320 21 (1991); JOHN
RAWLS, POLITICAL LIBERALISM 238 40 (2d ed. 2005); Cass R. Sunstein, American Advice and
New Constitutions, 1 CHI. J. INT’L L. 173, 185 § 7 (2000); Stephen Townley, Perspectives on
Nation-Building, 30 YALE J. INT’L L. 357, 365 (2005). But see Richard H. Fallon, Jr., The Core
of an Uneasy Case for Judicial Review, 121 HARV. L. REV. 1693, 1727 n.118 (2008)
(suggesting, though not asserting, concerns with entrenchment).
12. MARTIN LOUGHLIN, THE IDEA OF PUBLIC LAW 113 (2003).
In Part II of this article, I will probe the theoretical foundations of
entrenchment by unveiling a new theory to understand the varying degrees
of constitutional permanence. I will also sketch the contours of democratic
constitutionalism, paying particular attention to what I consider its
fundamental promise of active citizenship. In Part III, I will move from
theory to actuality, developing an original taxonomy of entrenchment
clauses, beginning with preservative entrenchment, then moving onward to
transformational and reconciliatory entrenchment. Part III will concurrently
construct the case against entrenchment, acknowledging some instances in
which entrenchment clauses may be useful to the design of new
constitutional states, but arguing more broadly that entrenchment clauses
undermine the participatory values that give constitutionalism its meaning.
In Part IV, I will propose an alternative to entrenchment clauses that I call
the entrenchment simulator. In contrast to entrenchment clauses that render
their amendment a constitutional impossibility, the entrenchment simulator
provides a promising alternative that both embraces the expressive function
of entrenchment clauses and remains consistent with the promise of
constitutionalism. Part V will close with a few concluding thoughts about
the enduring tension between constitutionalism and democracy.
II. CONSTITUTIONAL ENTRENCHMENT

Ordinarily, the text of a constitution is subject to evolving
interpretations. This should come as no surprise insofar as a constitution is
often drafted in expansive language whose terms, standing alone, can
neither prescribe nor proscribe a particular course of action. Accordingly,
the text undergoes a continual evolution in constitutional meaning
manifesting itself as formal or informal interventions in the organic
development of the constitution. These interventions, which either arrest or
quicken the pace of constitutional change, take the form of constitutional
amendments inscribed into the text of the constitution. 13
Amending the constitution usually demands an extraordinary confluence
and sequence of events launched by political institutions, traditionally either
legislatures, 14 heads of state, 15 social forces like popular movements 16 or
13. On the notion of unwritten constitutional amendments, see ACKERMAN, supra note 11;
BRUCE ACKERMAN, WE THE PEOPLE: TRANSFORMATIONS (1998); Sanford Levinson, How Many
Times Has the United States Constitution Been Amended? (A) <26; (B) 26; (C) 27; (D) >27:
Accounting for Constitutional Change, in RESPONDING TO IMPERFECTION: THE THEORY AND
PRACTICE OF CONSTITUTIONAL AMENDMENT 13, 25 32 (Sanford Levinson ed., 1995); David A.
Strauss, Common Law Constitutional Interpretation, 63 U. CHI. L. REV. 877, 884 (1996).
14. See, e.g., CONSTITUCIÓN DE LA REPÚBLICA DE CUBA [Constitution] ch. XV, art. 137
less obvious—though no less influential—coils of constitutional change like
courts. 17 In the normal course of affairs, therefore, a constitution is
susceptible to episodic revision consistent with the rules of constitutional
amendment located in the constitutional text.
But not all constitutions are created equal. Some constitutional states
enshrine constitutional provisions that are not subject to either regular or
periodic amendment. 18 They are unamendable. By unamendable, I do not
mean that constitutional provisions are practically or virtually unamendable
as a result of particularly onerous amendment formulae. 19 I mean to identify
these entrenched provisions quite literally as fully resistant to the
constitutional amendment procedures outlined in the text of the constitution
insofar as they may not ever be lawfully amended—even if citizens and
legislators achieve the requisite majorities commanded by the constitution.
To entrench a constitutional provision is therefore expressly to remove what
that provision enshrines—for instance a legal principle, social or moral
value, governmental structure or political rule—from the parameters of the
customary constitutional field of play.
(Cuba); REPÚBLICA DOMINICANA [Constitution] tit. XIII, art. 116 (Dom. Rep.); CONST. OF THE
KINGDOM OF NORWAY, pt. E, art. 112 (1814).
15. See, e.g., CONSTITUTION DE LA RÉPUBLIQUE GABONAISE [Constitution] tit. XII, art.
116 (Gabon); L A CONSTITUTION DE LA RÉPUBLIQUE DE MADAGASCAR [Constitution] tit. VIII,
art. 140 (Madag.); LA CONSTITUTION DE LA RÉPUBLIQUE TUNISIENNE [Constitution] ch. X,
art. 76 (Tunis.).
16. See Jack M. Balkin, How Social Movements Change (or Fail to Change) the
Constitution: The Case of the New Departure, 39 SUFFOLK U. L. REV. 27, 27 28 (2005);
William N. Eskridge, Jr., Some Effects of Identity-Based Social Movements on Constitutional
Law in the Twentieth Century, 100 MICH. L. REV. 2062, 2064 65 (2002); Reva B. Siegel, Text
in Contest: Gender and the Constitution from a Social Movement Perspective, 150 U. PA. L.
REV. 297, 351 (2001).
17. See ANDREI MARMOR, INTERPRETATION AND LEGAL THEORY 142 (2d ed. 2005).
18. See infra Part III.
19. See, e.g., Michael J. Klarman, What’s So Great About Constitutionalism?, 93 NW. U.
L. REV. 145, 184 (1998) (suggesting that the rules to amend the United States Constitution are so
arduous that the Constitution is, for all intents and purposes, entrenched); Wendy Turnoff
Atrokhov, Note, The Khasavyurt Accords: Maintaining the Rule of Law and Legitimacy of
Democracy in The Russian Federation Amidst the Chechen Crisis, 32 CORNELL INT’L L.J. 367,
381 (1999) (referring to the difficulty of amending the Russian Constitution).
A. Degrees of Permanence
Entrenchment is a matter of both degree and kind. 20 There are different
stages of entrenchment ranging in increasing rigidity from provisional to
permanent entrenchment. Just as a constitutional provision may be
entrenched, so too may a law. Conventional laws are subject to legislative
revision or repeal in the regular legislative process by the default rule of
simple majority. But a legislature may entrench a law by requiring special
legislative majorities or other unconventional decision rules to amend or
repeal it. By imposing a higher threshold for amending that entrenched law,
the legislature sets it apart from conventional laws. Likewise, a similar
distinction applies to constitutional provisions. Entrenching a constitutional
provision is to require special procedures to amend or revise the content of
that entrenched constitutional provision. Whereas a constitution may, as a
default rule, require a special legislative or popular majority, or both, to
amend one of its provisions, amending an entrenched constitutional
provision would entail something qualitatively or quantitatively more than
the default rule demands.
We may conceptualize entrenchment on a sliding scale of the type of
legislative and/or popular majorities required to consummate a revision to
an entrenched provision, be it a legislative or constitutional provision. At its
core, then, entrenchment is a measure of permanence. Perhaps an
illustration of the stages of entrenchment will help sharpen precisely what it
means to say that there exist different degrees of entrenchment.
Let us therefore posit an ascending scale of entrenchment permanence
consisting of five separate stations: (1) legislative non-entrenchment; (2)
legislative entrenchment; (3) conventional constitutional entrenchment; (4)
heightened constitutional entrenchment; and (5) indefinite constitutional
entrenchment. Let us also stipulate that we find ourselves in a presidential
system where the national bicameral legislature must pass laws by a
20. Although constitutional scholars do not discuss entrenchment in these terms, the
notion of degrees of entrenchment is implicit in their work. See, e.g., Lourens W. H.
Ackermann, The Legal Nature of the South African Constitutional Revolution, 2004 N.Z. L.
REV. 633, 645 (2004); Robert Kwame Ameh, Doing Justice After Conflict: The Case for
Ghana’s National Reconciliation Commission, 21 CAN. J.L. & SOC’Y 85, 101 (2006); Carlos E.
Gonzalez, Popular Sovereign Generated Versus Government Institution Generated
Constitutional Norms: When Does a Constitutional Amendment Not Amend the Constitution?,
80 WASH. U. L.Q. 127, 229 (2002); A. Leon Higginbotham, Jr. et al., De Jure Housing
Segregation in the United States and South Africa: The Difficult Pursuit for Racial Justice, 1990
U. ILL. L. REV. 763, 783 n.77; Tayyab Mahmud, Jurisprudence of Successful Treason: Coup
d’Etat & Common Law, 27 CORNELL INT’L L.J. 49, 60 (1994); Ariel Porat & Omri Yadlin,
Promoting Consensus in Society Through Deferred-Implementation Agreements, 56 U.
TORONTO L.J. 151, 176 (2006).
majority vote of both houses and in which the constitution may be amended
by a supermajority of each house of the national legislature, as well as a
majority of the subnational legislatures. 21
Beginning at the lowest end of the scale, we find a conventional law on a
conventional subject passed by the bicameral legislature. To revise or even
to repeal this law would require nothing out of the ordinary: a conventional
law passed by a majority of the bicameral legislature will suffice. We may
refer to this lowest level as simply legislative non-entrenchment.
Next, the second station of least permanence is occupied by an
unconventional law passed by a conventional legislature. The law is
unconventional because the legislature deems its subject matter sufficiently
important as to insist that any effort to revise the law must muster more than
a simple majority of the bicameral legislature. Perhaps the law concerns
something of peculiar historical significance to the nation. Given its
importance, the law would be subject to higher threshold for amendment: a
supermajority of the bicameral legislature. I refer to this second station as
legislative entrenchment.
The third level of entrenchment in our sample sliding scale of
permanence is a constitution. Let us posit that the drafters of this
constitution, having had the foresight to prepare for the contingency that
their constitution may require some modifications over the course of its
duration, enshrined an amendment formula in the text of the document. The
constitution stipulates that amending the constitution, perhaps to respond to
changing social and political conditions, requires two conditions: the
approval of a supermajority of the bicameral national legislature and the
consent of a majority of the subnational legislatures. In my taxonomy, this
third station is called conventional constitutional entrenchment.
What follows this third level of entrenchment is what we might consider
a superconstitutional provision requiring even more exacting conditions for
amendment. The drafters may have deemed certain constitutional provisions
particularly noteworthy or vital to the design of the state, in which case they
may have set those provisions apart from the other constitutional provisions.
Perhaps the drafters of the constitution believed that the rules of executive
selection were so deeply constitutive of the state as to warrant special
solicitude in the text of the constitution. Imagine, therefore, that the
21. The number of stations in our sliding scale would of course vary from one jurisdiction
to the next, depending on the structure of the legal order (namely whether it is presidential,
parliamentary, semi-presidential or otherwise), the rules of constitutional modification
enshrined in the text of the constitution, and on the profile of its constitutional hierarchy
(specifically where sovereignty rests within each of these models, for instance in the legislature,
judiciary, executive, elsewhere or some form of shared sovereignty).
founding drafters established a special rule to amend this particular
constitutional provision. Instead of requiring a supermajority of the
bicameral national legislature and a majority of the subnational legislatures,
any amendment to this superconstitutional provision would demand the
approval of a supermajority of both the national legislature and the
subnational legislatures. This fourth station of entrenchment is
conspicuously more rigorous than the third, and of course far more exigent
than the two other foregoing stations. I call it heightened constitutional
entrenchment.
This brings us to the fifth station in our ascending scale of entrenchment.
As we intensify the degree of entrenchment from the first station through
the fourth, the fifth and final station is permanence. Assume here that the
founding drafters of the constitutional text were so convinced of the
importance of a given constitutional provision that they chose to shield that
provision from any future effort either to amend it or to remove it entirely
from the constitution. Just as we can conceive that certain constitutional
provisions that may be deemed of greater consequence than others, we may
certainly conceive of constitutional provisions that are thought to be of such
great consequence to the state as to warrant making them wholly immune to
the amendment procedures enshrined in the constitutional text. These would
include provisions that, in the view of the founding drafters, are special
provisions which far surpass the solemnity of the superconstitutional
provisions warranting heightened constitutional entrenchment. Perhaps the
founding generation regarded certain constitutional structures, values or
principles as so fundamental to the existence and identity of the state that
they charted the unusual course of carving out a special class of
unamendable constitutional provisions. What makes them special is that no
measure of legislative or popular approval—not even unanimity among all
institutions of the state in concert with the freely expressed wishes of the
citizenry—would be sufficient ever to change these unamendable
provisions. On our ascending scale of entrenchment, we might call this fifth
and most uncompromising type of entrenchment indefinite constitutional
entrenchment.
B. Entrenching Permanence
My focus in these pages is just that: indefinite constitutional
entrenchment, which I shall henceforth refer to simply as entrenchment. The
notion of entrenchment raises fascinating questions about the purpose of
constitutionalism—and also about its promise—and challenges us to think
critically about the relationship between constitutionalism and democracy.
What is it about constitutions, for example, that gives them their force of
reason? Does a constitution derive its legitimacy from liberal democratic
principles, the consent of the governed, or should we revere a constitutional
text because it displaces the seat of sovereignty from citizens to another
more legitimate site? I suspect that the most compelling answer draws from
each of these, and still other themes. 22
Constitutionalism is an institution that at once celebrates and undermines
democracy. On the one hand, constitutionalism is firmly rooted in popular
will insofar as it aggregates and subsequently crystallizes the disparate
needs, demands, and aspirations of citizens. But, on the other hand, insofar
as it takes possession of the sovereignty of citizens, constitutionalism is an
affront to the most basic principle of democracy: the power to define and
redefine oneself and to shape and reshape the contours of the state.
Entrenchment, more than any other constitutional device, illustrates how
constitutions undermine democracy. This of course begs the question: what
is democracy? I am sympathetic to Samuel Issacharoff’s definition:
democracy refers to a system of self-government in which legitimate
authority derives from the freely expressed will of citizens expressing their
views either directly or indirectly.23 I therefore adopt procedural democracy,
in contrast to substantive democracy, as my baseline understanding of the
concept. Procedural democracy concerns itself with the process by which
citizens make decisions about their collective future as members of the
state. 24 Substantive democracy concerns itself with the values that underpin
the actual decisions that citizens make. 25 In this respect, the former orients
itself toward the decisional input and the latter, the decisional output. 26 This
was the very basis of John Hart Ely’s process-based theory of democracy, 27
which, in my view, captures the essence of democratic legitimacy.
Democracy and its attendant institutions demand that citizens be given
every opportunity to participate in the procedures for settling on, and
ultimately setting, the trajectory of the state. 28
22. Walter Dellinger makes a good case that constitutional legitimacy flows from the
consent of the governed. See Walter Dellinger, The Legitimacy of Constitutional Change:
Rethinking the Amendment Process, 97 HARV. L. REV. 386, 387 (1983).
23. Samuel Issacharoff, Constitutionalizing Democracy in Fractured Societies, 82 TEX. L.
REV. 1861, 1861–62 (2004).
24. See Gregory H. Fox & Georg Nolte, Intolerant Democracies, 36 HARV. INT’L L.J. 1,
14–15 (1995).
25. Id. at 16.
26. Larry Alexander, Still Lost in the Political Thicket (or Why I Don’t Understand the
Concept of Vote Dilution), 50 VAND. L. REV. 327, 329–31 (1997).
27. See JOHN HART ELY, DEMOCRACY AND DISTRUST (1980).
28. Id. at 87.
What underlies my view of constitutionalism is therefore that popular
choice is a value worth defending. Popular choice may admittedly depart
from the commonly cited substantive values of liberal democracy. But just
as fairness, equality, and due process are first order values that are integral
to modern civil society, popular choice should likewise occupy a privileged
position because it is the very act of deliberation, reflection and ultimately
choosing that gives democracy its meaning. Without choice and the right to
exercise it, we detract from the purpose of joining together in the shared
venture that is a community, be it a village, territory, nation or state.
Yet, procedural democracy on its own has proven to be an insufficiently
strong basis upon which to stand up a new constitutional state. 29 Procedural
democracy, to paraphrase Daniel Markovits, has had to bow to the mercy of
the substantive values of democracy 30 and to accept that it is ill-equipped to
address the needs of modernity. And perhaps with reason because the
dangers of privileging process over substance are familiar to us all, and they
serve as a frightening reminder that choice does not always produce
righteous outcomes. We need only look to history, some of it alarmingly
recent, for proof that citizens should not always be entrusted with the power
of free choice because there is little assurance that they will act in the larger
interests of justice and virtue. Nazism in Germany, 31 apartheid in South
Africa 32 and Jim Crow laws in the United States 33 are but three vicious
manifestations of majoritarianism.
29. Jiri Priban, Reconstituting Paradise Lost: Temporality, Civility, and Ethnicity in Post-
Communist Constitution-Making, 38 LAW & SOC’Y REV. 407, 415 (2004).
30. Daniel Markovits, Democratic Disobedience, 114 YALE L.J. 1897, 1906 (2005).
31. See, e.g., WILLIAM L. SHIRER, THE RISE AND FALL OF THE THIRD REICH: A HISTORY OF
NAZI GERMANY (1991). Indeed, the German Basic Law is the product of a distinctly substantive,
rather than procedural, conception of democracy. See Ruti Teitel, Transitional Jurisprudence:
The Role of Law in Political Transformation, 106 YALE L.J. 2009, 2066–67 (1997); Judith Wise,
Dissent and the Militant Democracy: The German Constitution and the Banning of the Free
German Workers Party, 5 U. CHI. L. SCH. ROUNDTABLE 301, 302 (1998). For a concise chronicle
of the motivations behind the substantive focus of the German Basic Law, see Brendon Troy
Ishikawa, Toward a More Perfect Union: The Role of Amending Formulae in the United States,
Canadian, and German Constitutional Experiences, 2 U.C. DAVIS J. INT’L L. & POL’Y 267, 281–
86 (1996).
32. See, e.g., P. ERIC LOUW, THE RISE, FALL, AND LEGACY OF APARTHEID (2004). In South
Africa, the oppressive regime was in the minority and the oppressed peoples formed the
majority. But the minority created political institutions, most notably the Tricameral Parliament,
designed with special procedures to permit the minority to govern as the de facto majority over
the de jure majority. See RICHARD SPITZ & MATTHEW CHASKALSON, THE POLITICS OF
TRANSITION: A HIDDEN HISTORY OF SOUTH AFRICA’S NEGOTIATED SETTLEMENT 9 (2000).
33. See, e.g., MICHAEL J. KLARMAN, FROM JIM CROW TO CIVIL RIGHTS: THE SUPREME
COURT AND THE STRUGGLE FOR RACIAL EQUALITY (2004).
That is precisely why constitutional drafters opt so wisely to restrict
popular choice. By erecting barricades to guard against the menace of
majoritarianism, constitutions and their attendant counter-majoritarian
institutions aim to neutralize the dangers of majoritarianism, namely the
popular predisposition to actualizing short-term preferences over long-term
investments, the inclination toward concrete benefits over abstract ideals,
and the subjugation of minority rights to majority will. 34 It is, therefore, one
thing to hold in high esteem the value of democratic popular choice, but
quite another to set it as the definitive standard against which other values
are measured. This common practice—the subordination of process to
substance—is now standard procedure in the task of constitutional design. 35
Citizens have become accustomed to—and if they have not, they should
resign themselves to—restrictions on their capacity to choose their own
course, both as individuals and as members of a community, because it is
the only way to neutralize the self-interest that informs, and perhaps more
accurately constrains, our choices. And so it makes eminent sense to limit
the scope of popular choice.
But to fully deny citizens any form of popular choice in designing and
redesigning their very own constitution is another matter altogether. And it
is similarly qualitatively different from—and significantly more
objectionable than—denying citizens the right to speak through their elected
representatives on matters of everyday legislative affairs. In my taxonomy
of degrees of entrenchment, this latter example would correspond to the
second level of entrenchment, pursuant to which a legislature passes a law
that can be amended or repealed only with a special majority of legislators.
Legislative entrenchment, as it is called, as opposed to constitutional
entrenchment, has given rise to an engaging exchange among constitutional
scholars, some arguing that one legislature may bind a subsequent
legislature and others arguing the contrary. 36 The contemporary debate
derives from the foundational work of the great English constitutional
theorist, Albert Venn Dicey, which has since been refined by his modern
counterpart, H.L.A. Hart. Both Dicey and Hart help illuminate competing
34. Erwin Chemerinsky, The Supreme Court 1988 Term—Foreword: The Vanishing
Constitution, 103 HARV. L. REV. 43, 83–84 (1989).
35. Id. at 64–74.
36. Compare Eric A. Posner & Adrian Vermeule, Legislative Entrenchment: A
Reappraisal, 111 YALE L.J. 1665 (2002) (arguing that an earlier legislature may bind a future
legislature), with John O. McGinnis & Michael B. Rappaport, Symmetic Entrenchment: A
Constitutional and Normative Theory, 89 VA. L. REV. 385 (2003) (critiquing the theory of
legislative entrenchment advanced by Posner and Vermeule), and John C. Roberts & Erwin
Chemerinsky, Entrenchment of Ordinary Legislation: A Reply to Professors Posner and
Vermeule, 91 CAL. L. REV. 1773 (2003) (same).
notions of legislative sovereignty: the first incarnation of sovereignty
granting a later Parliament the continuing sovereignty from which it may
claim the right to overrule an earlier one; and the second placing
Parliaments across the ages on an equal footing such that no one body may
bind another. 37
Whether an earlier legislature may bind a future legislature invokes
significantly lower stakes than whether a prior body of citizens may
irreversibly bind a subsequent body of citizens against its will. Citizens
acting as constitutional amenders may undo legislative entrenchment, but
legislative entrenchment should not trump constitutional amendment.
Legislative entrenchment admittedly compromises sovereignty. But it is a
secondary, and indeed lesser, form of sovereignty that we may call
mediated sovereignty, which refers to the people themselves acting through
their duly elected legislative delegates. In contrast, constitutional
entrenchment goes much further. First, constitutional entrenchment does not
compromise mediated sovereignty; it instead constrains direct sovereignty,
which refers to the people themselves acting of their own volition in their
own name, unfettered by the bureaucratic and political hurdles that
representative democracy presents. It is therefore the purest form of
sovereignty imaginable, the very apex of constitutional legitimacy and
legitimate authority. Second, constitutional entrenchment does not stop at
simply compromising that sovereignty, as one might characterize the
consequence of legislative entrenchment. Constitutional entrenchment does
something far more grave and much more severe than legislative
entrenchment: it extinguishes sovereignty.
Constitutional entrenchment also runs contrary to the promise that
constitutionalism augurs for citizens. Constitutionalism is an institution that
should reflect how citizens see themselves and their state—precisely
because it is citizens themselves who should breathe ongoing life and
meaning into their constitution. A constitution is a constitution only if it
retains for citizens the right to define and redefine themselves and their state
as they deem best. If the constitution sequesters this fundamental right of
self-definition from citizens, then a constitution cannot be what it is
intended to be—a continuing autobiography, a project of discernment and
an evolving self-portrait.
Some states strip their constitutional text of the very essence of
constitutionalism. They entrench constitutional provisions against
amendment, in so doing handcuffing the wrists of their citizens and leaving
37. A.V. DICEY, INTRODUCTION TO THE STUDY OF THE LAW OF THE CONSTITUTION 18–25
(Liberty Fund 8th ed. 1982); H.L.A. HART, THE CONCEPT OF LAW 148–52 (2d ed. 1994).
them unable to escape their constitutional shackles. For that is precisely the
effect of entrenchment on citizens: it transforms them from citizens into
subjects, reminiscent of days long past when democracy was but a dream
envisaged by heroic revolutionaries preparing to stand up against their
imperial overlords. Mobilizing in pursuit of a new social charter to govern
how to relate to the state, and how to engage with themselves, citizens
birthed the radical notion of a text that would enshrine their rights and
liberties against infringement by the state. But the text itself was not cast in
iron. It was instead left open and receptive to social and political change—
discrete or grand changes that would occur as a result of either organic
evolution or deliberate revision—on the implicit if not explicit
understanding that it was not, nor could ever be, the text itself that was
sacred. What was understood to demand reverence as sacrosanct was
instead the source of the text’s legitimacy. And back then, as today, there is
but one singular basis of legitimacy and of legitimate authority: popular
choice. 38
That is the core of constitutionalism. And entrenchment undermines that
critical core of constitutionalism. As the emblematic embodiment of the
repudiation of popular choice, entrenchment fails not because it freezes for
some period of time a particular feature or features of the state 39 —that is,
after all, a legitimate function of a constitution—but rather because
entrenchment freezes a constitutional provision indefinitely. 40 Entrenchment
suppresses popular choice to the detriment of citizenship and narrows the
range of possibilities that citizens envision for themselves and their state.
Entrenchment, as it exists in constitutional states around the world, 41 from
the Americas to Africa, from Europe to Asia, works a devastating harm on
the constitutional soul of citizens. For by shielding constitutional provisions
against amendment, entrenchment takes possession of the fundamental civic
right of self-definition that is an avenue into the meaning and virtue of
democracy.
38. See Sanford Levinson, The Political Implications of Amending Clauses, 13 CONST.
COMMENT. 107, 116–17 (1996).
39. Samuel Issacharoff, Fragile Democracies, 120 HARV. L. REV. 1405, 1429 (2007).
40. Ernst Benda, The Protection of Human Dignity, 53 SMU L. REV. 443, 445 (2000)
(elaborating this point in the context of German constitutionalism).
41. See infra Part III.
III. POPULAR RETRENCHMENT
Entrenchment can take three forms. In this Part, I will illuminate and
critique each of them in greater detail. 42 I will begin, first, with preservative
entrenchment, which turns toward history to legitimize, and simultaneously
to shield against amendment, a constitutional principle, value, structure or
rule. I will then move to transformational entrenchment, which looks not
backward to what the state once was, but instead casts its gaze forward to
what the state could be, envisioning a new conception of the state that is
given pride of place in the constitution. Finally, third, I will discuss
reconciliatory entrenchment, whose purpose is to make peace possible
between former rivals, conferring upon wrongdoers irrevocable amnesty for
their transgressions. Each of the three types of entrenchment has its own
political motivation and each, its own rate of success. Yet each is also
subject to potent criticisms. Indeed, what all three forms of entrenchment
have in common is their deleterious consequences on the constitutional
culture of the state and the psyche of the citizenry. Constitutional
entrenchment can breed only popular retrenchment and precipitate the
decline of constructive public engagement in the project of democracy.
A. Preservative Entrenchment
The most basic type of entrenchment clause seeks to preserve something
thought to be distinctive about, or fundamentally constitutive of, the state
and its people. Preservative entrenchment aims to freeze a distinctly
historical conception of the state, one that perhaps its founders had hoped
forever to infuse into the governing model of civil society and to breathe
eternally into the spirit of the citizenry. In this regard, preservative
entrenchment looks backward into the past for direction to pilot the state
into the future, much like the constitutional theory of originalism. 43 For just
42. I should preface my taxonomy with two points. First, I use these three forms of
entrenchment as Weberian ideal types that are sufficiently distinguishable to strike instructive
contrasts. One type of entrenchment does not foreclose another, for there must of necessity be
some measure of overlap among them. Second, my entrenchment taxonomy applies only to the
highest degree of entrenchment: indefinite constitutional entrenchment. Two other scholars have
suggested their own respective entrenchment taxonomies but they apply to all degrees and kinds
of entrenchment. See Anupam Chander, Sovereignty, Referenda, and the Entrenchment of a
United Kingdom Bill of Rights, 101 YALE L.J. 457, 462 63 (1991) (positing two categories of
entrenchment: absolute and procedural); Julian N. Eule, Temporal Limits on the Legislative
Mandate: Entrenchment and Retroactivity, 1987 AM. B. FOUND. RES. J. 379, 384 85 (1987)
(defining entrenchment according to four categories: absolute, procedural, transitory and
preconditional).
43. See, e.g., DENNIS J. GOLDFORD, THE A MERICAN CONSTITUTION AND THE DEBATE
like originalism, preservative entrenchment is anchored in a rigid
philosophy of constitutional interpretation pursuant to which entrenchment
must be construed through the lens applied by its drafters irrespective of
any intervening socio-political changes that may warrant departing from
that founding vision.
Perhaps some examples may help illuminate precisely what I mean by
preservative entrenchment. Consider first constitutional structures. Under
the Brazilian Constitution, federalism may never be abolished. 44 The same
is true of federalism in Germany. 45 Why, one might wonder, have these two
countries made unamendable a constitutional arrangement like federalism?
The answer comes in equal parts of history and necessity. At their
constitutional creation, Brazil and Germany ventured, separately and at
different times, in search of a structure that would allow diverse territories
to unite under a single regime, and to do so in a democratic fashion. 46
Federalism was their answer, and remains to this day so fundamental to
their identity that it is eternally preserved, both in recognition of its
usefulness in sustaining internal peace among disparate subnational units
and in homage to the wisdom of their respective founders. 47 In contrast, the
converse constitutional structure finds itself entrenched in the Constitution
OVER ORIGINALISM 11 (2005) (stating that orginalism holds that “what binds the future is the
original understanding of the constitutional text”); EARL M. MALTZ, RETHINKING
CONSTITUTIONAL LAW: ORIGINALISM, INTERVENTIONISM, AND THE POLITICS OF JUDICIAL
REVIEW 20 (1994) (stating that “the most plausible defense of originalism rests on a single
axiom: The framers of the Constitution had legitimate authority to make political decisions that
would bind future governmental decisionmakers until superseded by judgments made through
the process specified in the Constitution itself”).
44. C.F. tit. IV, ch. 1, art. 60, § 4(1) (Braz.).
45. GG art. 79(3) (F.R.G.).
46. Donald L. Horowitz, The Many Uses of Federalism, 55 DRAKE L. REV. 953, 954 55
(2007).
47. The American, Australian and Canadian constitutions entrench provisions whose
function is effectively to forever establish federalism by erecting barriers to its amendment. The
constitutions enshrine rules ensuring the equitable representation of the subnational units in the
national legislature. See U.S. CONST. art. V; Part VII of the Constitution Act, 1982, Schedule B
to the Canada Act 1982, ch. 11, § 41(b) (U.K.); Commonwealth of Australia Constitution Act,
1900, ch. VIII, art. 128. These may not be changed without the consent of the subnational unit
whose share of representation is changed, something to which, for practical purposes, no
subnational unit is likely to consent. The United States Supreme Court has declared that this
clause is “permanent and unalterable.” Dodge v. Woolsey, 59 U.S. 331, 348 (1856). One scholar
has speculated quite persuasively on the founding motivation for drafting this clause. See Lee J.
Strang, The Clash of Rival and Incompatible Philosophical Traditions Within Constitutional
Interpretation: Originalism Grounded in the Central Western Philosophical Tradition, 28
HARV. J.L. & PUB. POL’Y 909, 960–61 (2005).
of Indonesia, which does not permit amendments to the unitary character of
the state. 48
Federalism and unitarism—examples of competing constitutional
structures shielded from constitutional amendment—are only two of the
more interesting nuances of preservative entrenchment. Let us now examine
some more of those nuances.
The story of preservative entrenchment is largely a study in contrasting
theories of the state. Understandably so, given that the very purpose of
preserving what the founders deem to be, or hope will become, a
distinguishable feature of the state is to make an unmistakable declaratory
statement about what is most important to the state and its citizens as a
collective bound together in common cause. Nowhere is this contrast more
apparent than the binary choice facing constitutional states setting in
opposition republicanism and monarchism.
Just as republican government has in the twentieth century become a
popular constitutional structure to entrench against future amendment, 49 so
too has monarchy persisted as a governing institution. Among the nations of
the world enshrining republicanism, we may identify Cameroon, 50 the
Dominican Republic, 51 Gabon, 52 France, 53 Italy, 54 Senegal 55 and Tunisia.56
For their part, Bahrain, 57 Cambodia, 58 Kuwait, 59 Morocco 60 and Qatar61
have taken the contrary approach, seeing fit to entrench the supremacy of
the monarchy against amendment.
48. UNDANG-U NDANG DASAR REPUBLIK INDONESIA [Constitution] ch. XVI, art. 37(5)
(Indon.).
49. See Elai Katz, On Amending Constitutions: The Legality and Legitimacy of
Constitutional Entrenchment, 29 COLUM. J.L. & SOC. PROBS. 251, 265 (1996).
50. CONSTITUTION DE LA RÉPUBLIQUE DU CAMEROUN [Constitution] part XI, art. 64
(Cameroon).
51. REPÚBLICA D OMINICANA [Constitution] tit.XIII, art. 119 (Dom. Rep.).
52. CONSTITUTION DE LA RÉPUBLIQUE G ABONAISE [Constitution] tit. XII, art. 117
(Gabon).
53. 1958 CONST. [Constitution] tit. XVI, art. 89 (Fr.).
54. COST. art. 139 (Italy).
55. CONSTITUTION DU SÉNÉGAL, tit. XII, art. 103 (Sen.).
56. LA CONSTITUTION DE LA RÉPUBLIQUE TUNISIENNE [Constitution] ch. X, art. 76
(Tunis.).
57. CONSTITUTION OF THE KINGDOM OF BAHRAIN, ch. VI, art. 120(c).
58. CONSTITUTION OF THE KINGDOM OF CAMBODIA, ch. XV, art. 153.
59. CONSTITUTION OF THE STATE OF KUWAIT, part V, art. 175.
60. CONSTITUTION DU MAROC tit. XII, art. 106 (Morocco).
61. PERMANENT CONSTITUTION OF THE S TATE OF QATAR, pt. V, art. 145.
And while the debate pitting presidentialism, semi-presidentialism and
parliamentarism endures in the world of emerging and developing nations,62
some states see no need to entertain these discussions and therefore
eliminate altogether the temptation ever to revisit this choice by eternalizing
one or the other as the invariable structure of government. Under the
constitutions of Chad, 63 East Timor 64 and Guinea, 65 the separation of
powers is not subject to amendment, while Greece66 has made its semi-
presidential configuration unchangeable.
Quite apart from choosing whether to entrench constitutional structures
like republicanism or monarchism, or presidentialism or parliamentarism, or
even federalism, another common choice facing states predisposed to
preservative entrenchment involves issues of territory or political theory.
Begin first with territory, which some states expressly make unsusceptible
to their constitutional amendment procedures. The constitutions of Burkina
Faso, 67 Comoros, 68 Djibouti, 69 Equatorial Guinea 70 and Madagascar 71 leave
no doubt about the inviolability of existing territorial borders insofar as they
do not contemplate the possibility of ever amending those borders—not
even pursuant to the constitutionally prescribed rules for amending the
constitutional text.
Another example of preservative entrenchment is even more fascinating.
Consider that most states usually accept that they and their citizens will
grapple with whether and how to stitch the fabric of religion into the
tapestry of the state. How should states, as the question is typically framed,
govern the relationship between the faith or atheism of citizens and the
administration of government? This is a terribly difficult question to answer
from any perspective, whether anchored in moral philosophy, democratic
theory, social justice, institutional design or otherwise. Some states have
62. See, e.g., JOSE ANTONIO CHEIBUB, PRESIDENTIALISM, PARLIAMENTARISM, AND

DEMOCRACY (2007). Compare Bruce Ackerman, The New Separation of Powers, 113 HARV. L.
REV. 633 (2000), with Steven G. Calabresi, Why Professor Ackerman is Wrong to Prefer the
German to the U.S. Constitution, 18 CONST. COMMENT. 51 (2001).
63. CONSTITUTION DU LA RÉPUBLIQUE DU TCHAD, tit. XIV, art. 225 (Chad).
64. UNDANG-U NDANG DASAR REPUBLIK DEMOKRATIS TIMOR L ESTE [Constitution] part
VI, tit. II, art. 156(1)(d) (E. Timor).
65. BASIC LAW OF THE REPUBLIC OF GUINEA, tit. XI, art. 91.
66. 1975 S YNTAGMA [SYN] [Constitution] part IV, § 2, art. 110(1) (Greece).
67. CONSTITUTION DU BURKINA F ASO, tit. XV, art. 165 (Burk. Faso).
68. CONSTITUTION DE L’UNION DES COMORES tit. VI, art. 37 (Comoros).
69. LA CONSTITUTION DE LA RÉPUBLIQUE DE DJIBOUTI, tit. XI, art. 88.
70. CONSTITUCIÓN DE LA REPÚBLICA DE GUINEA ECUATORIAL [Constitution] pt. V, art.
104 (Eq. Guinea).
71. LA CONSTITUTION DE LA RÉPUBLIQUE DE MADAGASCAR [Constitution] tit. V, art.
140 (Madag.).
therefore elected to preempt their internal struggles with these questions—
or at least to settle the question initially so as to remove it from the purview
of their continuing project of communal discernment—and have instead
made an irrevocable choice either to fuse religion into the apparatus of the
state or to exclude it entirely from the organs of government.
Case in point, the Afghan Constitution establishes Islam as the official
religion of the state, and does so in a way that prevents Islam from ever
being disestablished. 72 Algeria 73 and Iran 74 also fall within this category. In
contrast, other states forbid religion and the state from intersecting in any
way, committing the state to an uncompromising secularism that is
entrenched in the constitutional text. Benin, 75 Burundi, 76 Portugal,77
Tajikistan, 78 Togo 79 and Turkey 80 are prime examples of states taking this
latter approach.
These are the high stakes involved in preservative entrenchment. In
entrenching a theory of the state—federalist or unitary, presidential or
parliamentary, republican or monarchy, religious or secular—constitutional
designers hope to tie the hands of present and future citizens for two
reasons. First, tying their hands harbors the state against pressures to
conform either to the dominant social and political culture of the time. And
second, it avoids, though also often preempts, debates and discussion
concerning these controversial subjects. Preservative constitutional
provisions therefore adopt a defensive posture toward both the
constitutional text itself and the citizens of the state.
On the relationship between entrenchment and the constitutional text,
other stakes stand in the balance. Insofar as the constitution exempts
preservative constitutional provisions from the constitutional amendment
procedures enshrined in the constitutional text, preservative entrenchment
regards constitutional amendment procedures as a threat to the structures
and values it entrenches—which is precisely why preservation expressly
makes it impossible lawfully to amend the constitution in a manner
72. CONSTITUTION OF THE ISLAMIC REPUBLIC OF AFGHANISTAN ch. 10, art. 149 (Afg.).
73. CONSTITUTION DE LA RÉPUBLIQUE A LGÉRIENNE D ÉMOCRATIQUE ET P OPULAIRE
[Constitution] tit. IV, art. 178(3) (Alg.).
74. QANUNI ASSASSI JUMHURI’I ISLA’MAI IRAN [The Constitution of the Islamic
Republic of Iran] 177 [1980].
75. CONSTITUTION DE DA RÉPUBLIQUE POPULAIRE DU BENIN tit. XI, art. 156.
76. CONSTITUTION DE LA RÉPUBLIQUE DU BURUNDI tit. XIV, art. 299.
77. CONSTITUIÇÃO DA REPÚBLICA PORTUGUESA [Constitution] pt. IV, tit. II, art. 288(c)
(Portugese Republic).
78. CONSTITUTION OF THE REPUBLIC OF TAJIKISTAN ch. X, art. 100.
79. CONSTITUTION DE LA RÉPUBLIQUE TOGOLAISE tit. XIII, art. 144 (Togo).
80. TÜRKIYE CUMHURIYETI ANAYASASI [Constitution] part I, art. 4 (Turk.).
consistent with the constitutional text. To take such a hostile view of the
constitutional text is to express disdain for the institution of written
constitutionalism, for which the text generally stands as the highest
authority in the legal order, and to manifest deep misgivings about the role
of amending authority in liberal democracy.
Yet this betrays an uncomfortable inconsistency in the relationship
between preservative entrenchment and the constitutional text. On the one
hand, preservative entrenchment weakens the authority of the constitution
by expressly derogating from its constitutional amendment procedures. On
the other, the premise of preservative entrenchment is that the constitutional
text is viewed with such reverence that citizens and the state will respect the
constitution’s avowed special solicitude for certain structures or values,
whether republicanism or monarchism, federalism or unitarism, or
otherwise. Therefore, although preservative entrenchment acknowledges the
existence of internal and self-regulating constitutional amendment
procedures, preservative entrenchment undermines those amending
practices in the same breath when it declares that those amendment rules are
useless in the face of entrenched provisions.
The immediate consequence of this incongruity is to establish a troubling
hierarchy of constitutional provisions pursuant to which some parts of the
constitutional text warrant greater deference than others. While it may seem
plausible and indeed defensible to view a constitutional text as a collection
of provisions of varying force and significance, this particular view of a
constitution is imprudent. To regard a constitution as a mere compilation of
individual provisions, each subject to a sliding scale of worth, is to devalue
the constitutional text as a document whose constituent parts must be read
together to give the larger whole its full meaning. There also exists a larger
and more problematic consequence of the hierarchy of constitutional
provisions resulting from the departure between text and entrenchment: the
reasons or principles according to which some constitutional provisions are
elevated above others may be neither apparent nor even logically sound to
those bound by its terms. 81
Far from suggesting that we cannot claim as a descriptive matter that one
constitutional value or commitment may never predominate over another at
any given time, the more modest, and uncontroversial, claim I am
81. It has been suggested that there may be no principled basis upon which to construct a
hierarchy of constitutional values. See, e.g., Valley Forge Christian Coll. v. Am. United for
Separation of Church and State, 454 U.S. 464, 484 (1982). But see Walter F. Murphy, An
Ordering of Constitutional Values, 53 S. CAL. L. REV. 703, 706 (1980) (arguing that there does
exist a principled basis upon which to rank constitutional values).
advancing is that these preferences shift over time. 82 Without the knowledge
of context and circumstance, there is no sound basis upon which to rest a
constitutional hierarchy. 83 Ranking constitutional provisions by irretrievably
bestowing extraordinary status on one over others is a perilous practice
because it threatens to deplete the text of its intrinsic value as an institution
whose authority applies equally, fairly and predictably to citizens and the
state.
On the relationship between entrenchment and citizens, preservative
entrenchment conveys the very contrary message that a constitution should
express to its citizens. It declares to them that they are to be viewed with
suspicion, that they cannot be trusted to adhere to founding constitutional
principles without instituting defensive constitutional mechanisms designed
to ensure their obedience. This sends not only an enfeebling message to
citizens but it is moreover anchored in the incorrect, if not paternalistic,
presupposition that the citizens of yesterday know better what is right for
the present than the citizens of today themselves. Entrenchment tells
citizens that constitutions must therefore protect the values of the past from
the corrosive influences of the present by shielding constitutional provisions
against the freely expressed wishes of those whose lives are governed by a
text that is forever hoisted beyond their reach.
Of course, nothing is ever out of the hands of citizens. Citizens may at
any time reassert their sovereign authority to draft a new constitution. This
does not mean, however, that entrenchment is “an illusion” insofar as “[o]ne
constituent body cannot make constitutional provisions that prevent a future
constituent body from repealing the constitution, even where it introduces
an express provision that purports to do this.” 84 Entrenchment is very real
and has very real consequences for the lives of citizens. Still, citizens may
always, when they so choose, step outside the existing constitutional
structure to found a new constitutional arrangement for themselves. But this
alternative to enduring a displeasing or offensive constitutional structure or
value may be described only as radical. For by resorting to entrenchment to
preserve constitutional structures and values, the founding charter leaves
citizens with revolution as their only recourse if they ever wish to amend
82. Mark D. Rosen, Was Shelley v. Kramer Incorrectly Decided? Some New Answers, 95
CAL. L. REV. 451, 507 n.294 (2007).
83. Oliver Gerstenberg, What Constitutions Can Do (But Courts Sometimes Don’t):
Property, Speech, and the Influence of Constitutional Norms on Private Law, 17 CAN. J.L. &
JURIS. 61, 67 (2004).
84. Charles M. Fombad, Challenges to Constitutionalism and Constitutional Rights in
Africa and the Enabling Role of Political Parties: Lessons and Perspectives from Southern
Africa, 55 AM. J. COMP. L. 1, 23 (2007).
their constitution—an unusually unsavory position that is a vast departure
from normal constitutional conditions.
B. Transformational Entrenchment
While some constitutional states entrench provisions with an eye to
preserving something about the past or present, other states employ
entrenchment with a view to the future. In my taxonomy of entrenchment,
this latter category of entrenchment is transformational. Transformational
entrenchment endeavors to repudiate the past by setting the state on a new
course and cementing that new vision into the character of the state and its
people. When this new vision takes root in the constitution, it is likely to be
more of an aspiration than a concretized reality because it is a vision that
forms part of a forward-looking project typically deriving from a renovated
constitution. Although the framers of a clause subject to transformational
entrenchment cannot quite be certain of knowing the contours of what they
are preserving, their intent is to shape what that future will be. And
transformational entrenchment is their chosen vehicle.
A number of states—many of which fall into the predictable group of
states we can appreciate would wish to turn the page on the tragic horrors of
an earlier time in their history—engage in the project of social and political
reconstruction by relying on entrenchment clauses to transform the state
from its prior form into a new and more just incarnation. These clauses,
their framers believe, will help set the new state in the right direction as it
emerges from a troubled, and often troubling, past.
Constitutional designers hope that, seeing in the text of the constitution
itself the public commitment to rehabilitating the evils of days gone by,
citizens will rise above their divided past and prevail over the forces that
would pull them back into the vortex of disunity, inequality, despotism or
some combination of these. Such is the hope animating states subscribing
enthusiastically to the possibilities of transformational entrenchment. At its
core, then, transformational entrenchment reflects an ambition to push the
state and its people away from the tragedies of yesterday toward the
horizons of tomorrow in the spirit of liberal democratic values, principles
and institutions that are today synonymous with democracy.
Bills of rights, positive and negative freedoms, and a fairer distribution
of wealth—all of these have become the subject of transformational
entrenchment in many nations of the world. For instance, the rebuilt
Constitution of Bosnia and Herzegovina seeks to arrive at the state’s new
tomorrow by making all civil and political rights unamendable. All rights,
including but not limited to the freedoms of expression, association,
thought, religion, and assembly are inviolable under the Bosnian and
Herzegovinian Constitution. 85 That is quite a striking departure from its
earlier days of intolerance and oppression. 86
Several other countries have adopted a similar strategy of shielding all
citizen rights from amendment as a response to a once, and often still,
perilous social and political setting. Consider the Republic of the Congo,
which makes unamendable its entire menu of civil, political, economic,
social and cultural rights. 87 This is, again, an effort to break from the past. 88
The same is true of Moldova, where the constitution tells citizens that all of
their fundamental rights and freedoms—like equality, access to justice, right
to life, freedom of artistic expression, education, right to a healthy
environment, right to petition—shall never be amended. 89 That is another
example of a desire to start afresh. 90
Consider also Namibia, which removes from the field of constitutional
play such rights as assembly, association, due process, education, equality,
free movement, human dignity, privacy, religious freedom and speech 91 —a
bold attempt to effect a wholesale transformation of its prior regime. 92
Another instructive example is Romania, a country that emerged from the
terror of communism. 93 It now shelters from amendment all fundamental
rights and freedoms, namely the rights to life, privacy, conscience,
expression, health, education, assembly, inheritance, and to strike. 94 As a
final case in point, we may look to Ukraine, which prohibits amendments to
all rights, including the rights to equality, life, privacy, thought, speech,
85. USTAV BOSNE I HERCEGOVINE [Constitution] art. X, § 2 (Bosn. & Herz.).

86. See Anna Morawiec Mansfield, Ethnic but Equal: The Quest for a New Democratic
Order in Bosnia and Herzegovina, 103 COLUM. L. REV. 2052, 2056 (2003).
87. CONSTITUTION DE LA TRANSITION DE LA RÉPUBLIQUE DÉMOCRATIQUE DU CONGO
[Constitution] tit. VIII, art. 220 (Dem. Rep. Cong.).
88. See James Thuo Gathii, Popular Authorship and Constitution Making: Comparing and
Contrasting the DRC and Kenya, 49 WM. & MARY L. REV. 1109, 1111 (2008).
89. CONSTITU IA REPUBLICII D EMOCRAT DIN MOLDOVA [Constitution] tit. VI, art. 142
(Mold.).
90. See William Crowther, The Politics of Democratization in Postcommunist Moldova, in
DEMOCRATIC CHANGES AND AUTHORITARIAN REACTIONS IN RUSSIA, UKRAINE, BELARUS, AND
MOLDOVA 282, 282–329 (Karen Dawisha & Bruce Parrott eds., 1997).
91. CONSTITUTION OF NAMIBIA ch. XIX, art. 131.
92. See Makau wa Mutua, Hope and Despair for a New South Africa: The Limits of Rights
Discourse, 10 HARV. HUM. RTS. J. 63, 65 n.6 (1997); Adrien Katherine Wing,
Communitarianism vs. Individualism: Constitutionalism in Namibia and South Africa, 11 WIS.
INT’L L.J. 295, 337–44 (1993).
93. See John W. Van Doren, Romania: Ripe for Privatization and Democracy? Legal
Education as a Microcosm, 18 HOUS. J. INT’L L. 113, 116 (1995).
94. CONSTITU IA DIN ROMÂNIA [Constitution] tit. VII, art. 152 (Rom.).
religion, political participation, assembly and labor. 95 Prior to that, one
would have been hard pressed to find similar constitutional protections for
Ukrainian citizens. 96
But fundamental rights and freedoms are not the only types of
constitutional provisions to have become entrenched within the larger
transformational aspirations of constitutional states. Some states have
entrenched very particular electoral rules in an effort to transform the state
from a sanctuary for absolute rule into a citadel of democracy. These states,
many of them newly democratic, have suffered untold losses, not only
financial but also social and political, as a result of their seemingly
unshakable predisposition to fall into the hands of despotic rulers whose
interests are their own rather than those of citizens and the state itself.
The transformation from autocracy to freedom is neither quick nor ever
painless, and both the state and its citizens must strain valiantly to make it
work. Some, however, believe they have found the magic elixir to
accelerate and assure this transition. For constitutional designers resolved to
erect barriers against the return tide of tyranny, the apparent answer is to
install radical measures into the constitution to mitigate against what has
historically been, for them, the very real danger of imperialism and the
costly risk of reverting to authoritarian rule.
That constitutional states often fix term limits for the chief executive
should not come as a surprise. Indeed, many of the world’s foremost
democracies impose temporal ceilings on the initial duration and renewal of
presidential service. 97 But for a constitutional state to make such a ceiling
irrevocable is an entirely different matter insofar as it does more than
simply set a period of time the executive head cannot exceed in office under
the constitution. Entrenched term limits go well beyond that reasonable
constitutional rule and further make that period of time constitutionally
unchangeable, even if citizens and legislative majorities wish—and actually
fulfill the constitutionally prescribed pre-conditions—to amend those terms
of the constitution. This very kind of constitutional ban applies today in the
Central African Republic, 98 El Salvador, 99 Guatemala, 100 Honduras 101 and
Mauritania. 102
95. CONSTITUTION OF UKRAINE tit. XIII, art. 157.

96. See Richard C.O. Rezie, Note, The Ukrainian Constitution: Interpretation of the
Citizens’ Rights Provisions, 31 CASE W. RES. J. INT’L L. 169, 175–81 (1999).
97. See, e.g., U.S. CONST. amend. XXII; 1958 Const. [Constitution] art. 6 (Fr.); GG art. 52
(F.R.G.); CONSTITUIÇÃO DA REPÚBLICA P ORTUGUESA [Constitution] tit. II, ch. 1, art. 123,
para. 1 [Portugese Republic].
98. CONSTITUTION DE LA REPUBLIQUE CENTRAFRICAINE, tit. XIII, art. 108 (Cent. Afr.
Rep.). The president is limited to two terms, each for a duration of five years. Id. tit. III, ch. I,
art. 24.
There are of course reasons—compelling reasons, to be sure—why these
and other states have made term limits unamendable. In the case of the
Central African Republic, the presidential term limits were a direct response
to the nation’s problematic history of military coups and mutinies, and also
of the transparent efforts of rogue leaders to seize control of the state and
never to cede the reigns of power. At last count, the Central African
Republic had suffered through about one dozen coups since its
independence in 1960—which helps explain the unamendable presidential
term limits now in the new constitution of 2004.103 For El Salvador, the goal
was similar: to institute civilian control over the military and to create a
functioning democracy. 104 The history of the nation, particularly prior to the
new constitution of 1983, is replete with coups, free elections in name
alone, and military rule of the bureaucracy. 105
To make the rules of presidential tenure immutable was therefore to
consummate quite a reversal from earlier years in the nation’s history when
the country had called itself a democracy despite a consistent string of
destabilizing coups which continued to betray the undemocratic, and
volatile, bases of the state. 106 We find resonant echoes of the very same
99. CONSTITUCIÓN DE LA REPÚBLICA DE EL SALVADOR [Constitution], tit. IX, art. 248 (El.
Sal.). The president is limited to one five-year term. Id. tit. VI, ch. II, art. 154.
100. CONSTITUCIÓN DE LA REPÚBLICA DE GUATEMALA [Constitution] tit. VII, ch. I, art. 281
(Guat.). The president may serve only one term of four years. Id. tit. IV, ch. III, § I, art. 184.
Should the president seek to extend his term beyond this single four-year term, the Army
automatically devolves to congressional control, and the Congress is authorized to refuse to
recognize the president. Id. tit. IV, ch. II, § II, art. 165(g).
101. CONSTITUCIÓN DE LA REPÚBLICA DE HONDURAS [Constitution] tit. VII, ch. I, art. 374
(Hond.). The president is restricted to only one four-year term. Id. tit. V, ch. VI, art. 237. Should
the president try to lengthen his tenure, he and anyone who assists him in doing so will be
barred from public service for a period of ten years. Id. tit. V, ch. VI, art. 239.
102. CONSTITUTION OF THE ISLAMIC REPUBLIC OF MAURITANIA tit. XI, art. 99. The
president may be re-elected only once to serve a second term of five years. Id. tit. II, arts. 26, 28.
103. PIERRE KALCK, HISTORICAL DICTIONARY OF THE CENTRAL AFRICAN REPUBLIC lxviii–
lxxiv (Xavier-Samuel Kalck trans., 3d ed. 2005); STUART A. NOTHOLT, FIELDS OF FIRE: AN
ATLAS OF ETHNIC CONFLICT 2.16–.17 (2008); Dhaneshwar Ghura and Benoît Mercereau,
Political Instability and Growth in the Central African Republic, a Neighbor of the Democratic
Republic of the Congo, in POSTCONFLICT ECONOMICS IN SUB-SAHARAN AFRICA: LESSONS FROM
THE DEMOCRATIC REPUBLIC OF THE CONGO 205, 205–07 (Jean A.P. Clément ed., 2004).
104. MARGARET POPKIN, PEACE WITHOUT JUSTICE: OBSTACLES TO BUILDING THE RULE OF
LAW IN EL SALVADOR 14–15 (2000).
105. Shawn L. Bird & Philip J. Williams, El Salvador: Revolt and Negotiated Transition, in
REPRESSION, RESISTANCE, AND DEMOCRATIC TRANSITION IN CENTRAL AMERICA 25, 25–34
(Thomas W. Walker & Ariel C. Armony eds., 2000).
106. TOMMIE SUE MONTGOMERY, REVOLUTION IN EL SALVADOR: FROM CIVIL STRIFE TO
CIVIL PEACE 23–185 (1995). In addition to limiting the terms of office of its president, El
Salvador also makes the legislature unmistakably more powerful than the president—another
strategy of constitutional design to prevent abuses of executive power that have long
narrative in the logic that motivated other nations—particularly
Guatemala, 107 Honduras 108 and Mauritania 109 —to enshrine unamendable
presidential terms in their respective constitutions.
Whether transformational entrenchment achieves its purpose often turns
on the intensity of the popular will behind the vision of the constitutional
framers. Where the values of citizens align with the principles to which the
framers bind them, it is more likely than not that the social transformation
will come to fruition. For the consent of the governed is what gives
constitutionalism its meaning and legitimacy—and also what makes it
possible to join disparate peoples together in the common venture of
creating and sustaining a constitutional polity. After all, a constitution is
more than a simple legal document. It is, as has been written, a deed that
“reflects the triumphs and disappointments of a nation’s past and embodies
its hopes for the future.” 110 The constitutional text should speak to all
citizens, whatever their divergent paths to citizenship, and it should invite
them to shape the text and its meaning commensurate with their evolving
ambition and aspirations.
But to arrest the evolutionary process that is constitutive of constitutional
statehood is to shut citizens out of their project of constitutionalism. For
when the framers of the past are seen as imposing moral and political
standards that conflict with those underpinning how citizens of the now see
themselves and their state, the odds of sustaining the momentum toward
social transformation are unappetizing and insurmountable. And that is the
great hazard that confronts social engineers who rely on transformational
entrenchment.
characterized El Salvador. See MATTHEW SOBERG SHUGART & JOHN M. CAREY, PRESIDENTS
AND ASSEMBLIES: CONSTITUTIONAL DESIGN AND ELECTORAL DYNAMICS 158 (1992).
107. See SUSANNE JONAS, OF CENTAURS AND DOVES: GUATEMALA’S PEACE PROCESS
(2000); John A. Booth, A Guatemalan Nightmare: Levels of Political Violence, 1966–72, 22 J.
INTERAM. STUD. WORLD AFF. 195 (1980); Richard H. Immerman, Guatemala as Cold War
History, 95 POL. SCI. Q. 629 (1980–81).
108. See JAMES A. MORRIS, HONDURAS: CAUDILLO POLITICS AND MILITARY RULERS
(1984); Helen Schooley, Honduras: History, in SOUTH AMERICA, CENTRAL AMERICA AND THE
CARRIBEAN 2002, at 485–87 (Jacqueline West ed., 10th ed. 1985); Steve C. Ropp, The
Honduran Army in the Sociopolitical Evolution of the Honduran State, 30 AMERICAN 504
(1974).
109. Boubacar N’Diaye, Mauritania, August 2005: Justice and Democracy, or Just Another
Coup?, 105 AFR. AFF. 421 (2006); Cédric Jourde, “The President is Coming to Visit!” Dramas
and the Hijack of Democratization in the Islamic Republic of Mauritania, 37 COMP. POL. 421
(2005). Mauritania adopted a new constitution in 2006 specifically in order to make presidential
term limits unamendable. See Mauritania Backs ‘New Democracy’, BBC NEWS, June 26, 2006,
available at http://news.bbc.co.uk/2/hi/africa/5116442.stm.
110. Lloyd Cutler & Herman Schwartz, Constitutional Reform in Czechoslovakia: E
Duobus Unum?, 58 U. CHI. L. REV. 511, 512 (1991).
Quite apart from the dissonance between the political preferences of
framers long past and those of citizens living in the present day,
transformational entrenchment raises more substantial and immediate risks
in the context of electoral rules enshrined to smooth the path toward
democracy. Consider in this respect the Honduran example. As referenced
above, the Honduran Constitution limits the president to serving a single
term of four years, and any attempt by the president or his associates either
to secure a second term or to extend his first for any duration will result in
the forfeiture of his office. 111 This is not mere theory disconnected from
reality. On the contrary, a military coup in the summer of 2009 made
Honduras a fixture in the news media. 112 The latest spell of political
volatility in this Latin American state was cast either as an unfortunate
return to militarism despite brave steps taken toward liberal
democratization 113 or an overly aggressive president driven by his own cult
of personality. 114 There may be something to each of these insights. But the
real source of instability in Honduras is neither the military nor the
president. It is the constitution itself—specifically its entrenchment clause.
Let us return to the controversial facts of the Honduran coup. As
president, Manuel Zelaya had seen support for his presidency tumble to
historic lows not only among opposition parties—which had been gracious
in defeat following his 2006 presidential victory—but also in the larger
population, 115 and most ominously within his own party. 116 Inexplicably
111. See CONSTITUCIÓN DE LA REPÚBLICA DE HONDURAS [Constitution] tit. VII, ch. I, art.
374 (Hond.).
112. See, e.g., Frank Jack Daniel & Enrique Andres Pretel, Chavez Threatens Military
Action Over Honduras Coup, REUTERS, June 28, 2009, available at http://www.reuters.com/
article/idUSTRE55R1S820090628; Sara Miller Llana, Honduras Coup Spotlights Latin
America’s Growing Instability, CHRISTIAN SCI. MONITOR, July 3, 2009, available at
http://www.csmonitor.com/World/Americas/2009/0703/p06s01-woam.html; Alvaro Vargas
Llosa, Honduras’s Coup Is President Zelaya’s Fault, WASH. POST, July 1, 2009, available at
http://www.washingtonpost.com/wp-dyn/content/article/2009/07/01/AR2009070103210.html.
113. See William Booth & Juan Forero, New President of Honduras Warns Predecessor of
Arrest, WASH. POST, June 30, 2009, available at 2009 WLNR 12478284; Mary Beth Sheridan,
U.S. Condemns Honduran Coup, WASH. POST, June 30, 2009, available at 2009 WLNR
12423381; Ginger Thompson, A Cold War Ghost Reappears in Honduras, on a Solitary Quest,
N.Y. TIMES, Aug. 8, 2009, at A5, available at 2009 WLNR 15353311; Will Weissert,
Honduran President is Ousted by Military, STAR-LEDGER (Newark, NJ), June 29, 2009, at A1,
available at 2009 WLNR 12413631.
114. See, e.g., Alvaro Vargas Llosa, The Winner in Honduras: Chavez, N.Y. TIMES, June
30, 2009, at A21, available at 2009 WLNR 12447056; Mary Beth Sheridan, For U.S. and OAS,
New Challenges to Latin American Democracy, WASH. POST, July 6, 2009, available at 2009
WLNR 12819219.
115. Honduras Politics: President’s Standing Erodes, EIU VIEWSWIRE, Mar. 24, 2008,
available at 2008 WLNR 25994380.
undeterred by his evaporating popular approval, 117 Zelaya became an army
of one, intent on overriding the Honduran constitutional provision limiting
him to no more than one four-year term as president. Entrenched, and
therefore unamendable, the provision imposes harsh civil penalties on those
who dare even propose to amend it. 118
Despite the express constitutional prohibition forbidding him from taking
steps to amend the presidential term limit, Zelaya nevertheless pushed
ahead. 119 He proposed to hold a referendum to gauge the popular will for
amending this expressly unamendable constitutional provision.120 No
wonder, then, that Zelaya found himself standing alone in his audacious bid
to rewrite the constitution, staring down a united opposition that was
predictably led by his political adversaries, but less predictably also
included the Congress, the bipartisan Attorney General, the nation’s highest
court and the independent Supreme Electoral Tribunal.121 The Supreme
Court ordered the military to detain Zelaya on charges of treason and abuse
of power just hours ahead of the referendum he had planned to hold. 122
The military, however, appears to have acted somewhat unreasonably in
discharging its orders. Far from simply detaining Zelaya, Honduran forces
reportedly broke into his home late at night, confronted and detained his
personal security detail, and jarred the president out of his slumber with
sounds of gunfire. 123 Within minutes, Zelaya had been captured by masked
men, removed from his home and placed aboard a military airplane,
destination unknown (at least to Zelaya). 124 It was not until the plane had
116. Honduras: Starting to Stumble, BUS. LATIN AM., Aug. 6, 2007, available at 2007
WLNR 14925700.
117. See President Zelaya Drops to 25% in Honduras, ANGUS REID GLOBAL MONITOR,
Oct. 24, 2008, http://www.angus-reid.com/polls/view/32083/president_zelaya_drops_to_25_
in_honduras.
118. CONSTITUCIÓN DE LA REPÚBLICA DE HONDURAS [Constitution] tit. V, art. 239 (Hond.);
see also id. tit. VIII, art. 374 (entrenching article 239 of the Honduran Constitution).
119. Elisabeth Malkin, Honduran Army Ousts President Allied to Chavez, N.Y. TIMES, June
29, 2009, at A1, available at 2009 WLNR 12445535.
120. Tracy Wilkinson & Alex Renderos, Honduran Army Coup Sends Elected President
into Exile, SEATTLE TIMES, June 29, 2009, at A2, available at 2009 WLNR 12510225.
121. Juan O. Tamayo, Honduras Crisis Shows Latin America’s Institutional Weaknesses,
MIAMI HERALD, June 30, 2009, at A1, available at 2009 WLNR 12429054.
122. Marc Lacey, Leader’s Ouster Not a Coup, Says the Honduran Military, N.Y. TIMES,
July 2, 2009, at A6, available at 2009 WLNR 12588227.
123. Freddy Cuevas & Will Weissert, Army Ousts Honduran Leader; President Awakens to
Gunfire, Forced into Exile as World Condemns Move to Install Zelaya’s Rival, TORONTO STAR,
June 29, 2009, at A1, available at 2009 WLNR 12384640.
124. See Will Weissert, Honduras’ Swift Coup was Months in the Making, THE GUARDIAN
(U.K.), July 4, 2009, available at http://www.guardian.co.uk/world/feedarticle/8592056.
touched down in Costa Rica that Zelaya—still wearing his pajamas—finally
knew his location. 125
Few would defend the alarming manner in which the military stripped
Zelaya of his presidential authority. Fewer still would see legitimacy in it.
For by hoisting itself above the constitutional order governing the peaceful
and democratic transfer of power from one elected leader to the next, the
military appears to have violated one of the fundamental principles of
liberal democracy. But appearances can often be deceiving. That may be
especially true of this latest Honduran coup. Indeed, what at first seems like
an incontrovertibly illegitimate affront to democratic values begins to look
less indefensible with the benefit of our knowledge of Zelaya’s designs to
rewrite a constitutional provision that had expressly been immunized
against amendment. From this perspective, the military action to remove
Zelaya from power begins to look less like a disquieting plot to undermine
the Honduran constitutional order and more like a noble effort to uphold the
democratic principles that sustain it. And so while Zelaya claims that he
was kidnapped with violence and brutality, 126 it seems that it may have in
fact been Zelaya himself who had earlier tried to kidnap the Honduran
constitution by circumventing the constitutional ban on presidential term
limits.
But whether we defend or challenge the action of either the military or
Zelaya, one point is incontrovertible: the impetus for the Honduran political
crisis was the entrenchment clause barring the president from seeking to
extend his term. It was none other than this constitutional clause that pit the
leading popular democratic institution in Honduras—the presidency—
versus the other national democratic institutions, namely the legislature,
courts, and leading independent bodies. Absent this unchangeable clause,
Zelaya would have been free to raise the possibility of a referendum, and to
subsequently lawfully take the pulse of the people as to how they wish to be
governed.
For what remains lamentably lost in this entire episode is precisely
where Hondurans themselves stand on the matter. That is the most
important element in the continuing Honduran dialogue about the future
course of the constitution and its prohibition on amending presidential term
limits. It is, after all, the constitution of the citizens of Honduras. They
should not be silenced, as they have been by their own constitution no less.
It is shocking that their constitution not only forbids them from even
125. Pablo Ordaz, Ousted Honduran Leader Vows to Return, EL PAÍS (Spain), July 1, 2009,
at 4, available at 2009 WLNR 12503721.
126. Honduran President Ousted by Military, VOICE AM., June 28, 2009, available at 2009
WLNR 12409483.
considering proposals to amend the prohibition on presidential term limits,
but also imposes civil penalties for it. Just as Hondurans were handcuffed
into the stillness of constitutional paralysis, in an analogous fashion, the
Honduran national democratic institutions were themselves left with no
recourse but to uphold the rigidity of the constitutional text.
C. Reconciliatory Entrenchment
Reconciliatory entrenchment—the third category in my taxonomy of
entrenchment—is the least common among the entrenchment practices of
constitutional states. The purpose of a reconciliatory entrenchment clause is
laudable: to achieve peace among individuals whose interests were once in
such heightened tension that the consequence was social discord, physical
violence and even civil war. Recognizing the need to put an end to the
conflict—that is, to reconcile the previously disputing or fighting blocs—
the framers of a constitution will entrench a provision absolving members
of those factions of all prior wrongdoing, whether criminal or civil, and
forever extinguishing claims against them. The most common manifestation
of reconciliatory entrenchment is a constitutional clause granting blanket
amnesty or immunity.
Granting amnesty or immunity can be an effective vehicle to accelerate
the otherwise slow and problematic march to peace, and to discourage
perpetrators of civil war offenses from rekindling an outbreak of violence to
defend themselves from the consequences of capture. 127 Not only have
amnesty and immunity demonstrated their practical merit but their
theoretical bases are moreover undeniable.128 No wonder, then, that amnesty
laws have been passed as far and wide as Afghanistan, Argentina, Chile,
Peru, Uruguay and Zimbabwe. 129 They have also come into vogue in
countries like Bosnia and Herzegovina, 130 Brazil, 131 and Sierra Leone,132
127. Matthew J. Soloway, Cambodia’s Response to the Khmer Rouge: War Crimes
Tribunal vs. Truth Commission, 8 APPEAL: REV. CURRENT L. & L. REFORM 32, 43 (2002).
128. See, e.g., SAMUEL P. HUNTINGTON, THE THIRD WAVE: DEMOCRATIZATION IN THE LATE
TWENTIETH CENTURY (1991); MARTHA MINOW, BETWEEN VENGEANCE AND FORGIVENESS:
FACING HISTORY AFTER GENOCIDE AND MASS VIOLENCE (1998); Carlos S. Nino, The Duty to
Punish Past Abuses of Human Rights Put into Context: The Case of Argentina, 100 YALE L.J.
2619 (1991); Mark J. Osiel, Why Prosecute? Critics of Punishment for Mass Atrocity, 22 HUM.
RTS. Q. 118 (2000).
129. Charles P. Trumbull IV, Giving Amnesties a Second Chance, 25 BERKELEY J. INT’ L
L. 283, 295–97 (2007). For an insightful discussion of these laws in the Argentinian context, see
Christine A. E. Bakker, A Full Stop to Amnesty in Argentina, 3 J. INT’L CRIM. JUST. 1106
(2005).
130. The General Framework Agreement: Annex 7, Agreement on Refugees and Displaced
Persons, Bosn. & Herz.-Srpska, ch. 1, art. 6, Dec. 14, 1995, available at http://www.ohr.int/
whose transitional documents form part of larger ceasefire agreements
between rival parties. Even the United States has granted amnesties in the
larger national interest, most notably following the Civil War when
Abraham Lincoln and Andrew Johnson, successive presidents, issued
proclamations conferring amnesty upon those who had fought against the
Union. 133
But to pass a law or executive order giving someone the benefit of
amnesty protection is qualitatively different from inserting that amnesty
provision into the text of a constitution, as is or has been the case in
Colombia, 134 the Congo, 135 Côte d’Ivoire, 136 Liberia 137 and the Solomon
Islands. 138 And enshrining amnesty or immunity in a constitution is itself
wholly distinguishable from making that amnesty or immunity
unamendable.
Although it happens much less so, countries have indeed entrenched
amnesty provisions with sufficient frequency so as to make it more than a
simple idiosyncrasy that can be passed off as a constitutional anomaly
peculiar to outlier states.
The case of Niger is especially instructive. Following violent coups in
1996 and 1999, 139 the country adopted a new constitution, hoping that the
dpa/default.asp?content_id=375.
131. Transitional Constitutional Provisions Act, art. 8 (1988) (Braz.).
132. Sierra Leone Web–Lome Peace Accord, 7 July 1999, Peace Agreement Between the
Government of Sierra Leone and the Revolutionary United Front of Sierra Leone, Sierra Leone-
Revolutionary United Front of Sierra Leone, pt. III, art. IX, May 18, 1999, available at
http://www.sierra-leone.org/lomeaccord.html.
133. Daniel T. Kobil, The Quality of Mercy Strained: Wrestling the Pardoning Power from
the King, 69 TEX. L. REV. 569, 593 (1991).
134. CONSTITUCIÓN POLÍTICA DE COLOMBIA [Constitution], Transitory Provisions, ch. III,
art. 30 (1991).
135. CONSTITUTION DE LA TRANSITION DE LA RÉPUBLIQUE DÉMOCRATIQUE DU CONGO, tit.
VII, art. 199 (2003) [Dem. Rep. Congo].
136. CONSTITUTION OF THE REPUBLIC OF CÔTE D’IVOIRE, tit. XV, art. 132. In a recent suit
challenging the amnesty provision under the African Charter, the African Commission on
Human and Peoples’ Rights ruled that granting amnesty “to absolve perpetrators of human
rights violations from accountability violates the right of victors to an effective remedy.”
Communication 246/2002—Movement Ivoirien des Droits Humain (MIDH/Côte d’Ivoire),
Ex.Cl/490 (XIV), African Commission on Human and People’s Rights 57, at 75 (2008).
137. CONSTITUTION OF THE REPUBLIC OF LIBERIA, ch. XIII, art. 97.
138. CONSTITUTION OF SOLOMON ISLANDS, ch. VII, pt. III, art. 91 (1978); id. ch. XIII, art.
125A (1978). There also exists a law giving effect to the amnesty protections provided for in the
constitution. See The Constitution (Amendment) Act 2001 (Solomon Islands). But note that, as
part of its ongoing process of constitutional renewal, the Solomon Islands has a recent draft
constitution which proposes to repeal this amnesty provision as well as the law passed pursuant
to it. See Draft Federal Constitution of Solomon Islands, ch. 26, art. 269 (2004), available at
http://www.sicr.gov.sb/Draft%202009%20Fed_Const%20WebVersion%20[Completed].pdf.
139. For a concise history of these and related events, see Pierre Englebert, Niger: Recent
new social and political charter would spur citizens to relinquish their arms
and cede their misgivings in the interest of national appeasement. In
choosing among the many types of constitutions at its disposal—
presidential, parliamentary, and everything in between—Niger opted for the
French model of semi-presidentialism, 140 which marries parliamentary
politics with presidential prerogatives. The new constitution was adopted in
a national citizen referendum. 141 This remarkable popular mobilization
signaled to the world, and to Nigeriens themselves, a new beginning that
would take the conflicting, and conflicted, people of Niger in the direction
of liberal democratization, something that had long eluded them in the
past. 142
Putting the past behind—and forever erasing it from the national
memory—was, for Nigerien constitutional designers, the critical factor in
the formula for achieving peace. With this in mind, the constitutional
drafters enshrined an unamendable constitutional provision extending
blanket amnesty to the aggressors in the 1996 and 1999 coups. 143 On the
theory that the state and its citizens would more readily look to the future
and turn away from their distressing past if the disquieting events of recent
coups were stricken from the political field of play, the new constitution of
Niger therefore granted eternal immunity to the architects and enablers of
two of the more brutally destructive moments in Nigerien history. What is
more, the Nigerien Constitution now states in no uncertain terms that this
provision cannot ever be the subject of a constitutional amendment 144 —
even if in the future the necessary and sufficient amendment conditions
History, in AFRICA SOUTH OF THE SAHARA 748, 748–57 (32nd ed. 2003). For more easily
accessible accounts, see World: Africa Military Controls Niger, BBC NEWS, Apr. 10, 1999,
http://news.bbc.co.uk/2/hi/africa/316037.stm; World: Africa Niger: A Copybook Coup d’Etat,
BBC NEWS, April 9, 1999, http://news.bbc.co.uk/2/hi/africa/315663.stm; World: Africa
President Mainassara: A Profile, BBC NEWS, April 9, 1999, http://news.bbc.co.uk/
2/hi/africa/315840.stm.
140. Leonardo A. Villalón & Abdourahmane Idrissa, Repetitive Breakdowns and a Decade
of Experimentation: Institutional Choices and Unstable Democracy in Niger, in THE FATE OF
AFRICA’S DEMOCRATIC EXPERIMENTS: ELITES AND INSTITUTIONS 27, 33–48 (Leonardo Alfonso
Villalón & Peter VonDoepp eds., 2005).
141. BINAIFER NOWROJEE, PROTECTORS OR PRETENDERS?: GOVERNMENT HUMAN RIGHTS
COMMISSIONS IN AFRICA 58 (Human Rights Watch ed., 2001).
142. See Thomas Kelley, Unintended Consequences of Legal Westernization in Niger:
Harming Contemporary Slaves by Reconceptualizing Property, 56 AM. J. COMP. L. 999, 1022–
23 (2008); see also Richard Higgott & Finn Fuglestad, The 1974 Coup d’Etat in Niger: Towards
an Explanation, 13 J. MOD. AFR. STUD. 383 (1975) (discussing historical and institutional
factors that may predispose Niger to military coups).
143. CONSTITUTION, tit. XII, art. 141 (1999) (Nigeria).
144. Id. tit. XIII, art. 136.
exist and even if the popular and legislative majorities express their wish to
pass an amendment revising this controversial provision.
Just as Niger chose to rest its future on the possibilities of reconciliatory
entrenchment, South Africa made the same choice, but with a fascinating
twist. Unlike Niger, which had issued an unconditional grant of amnesty to
the architects, offenders and enablers of the coup, South Africa conditioned
its grant of irrevocable amnesty on an admission of guilt and a requirement
of full disclosure in a public forum of the events for which amnesty was to
be granted. 145 The forum was the nation’s Truth and Reconciliation
Commission, widely praised for moving the state and its people toward
peace. 146 As it forged a promising path toward national healing and
reconciliation, South Africa’s reliance on this mixed approach, combining
the sweet with the sour, ultimately proved successful, in the view of
many. 147
The South African incarnation of reconciliatory entrenchment is worth
closer attention. The post-apartheid 1993 interim constitution enshrined
amnesty for those who had participated in politically motivated acts,
omissions, crimes and offences during apartheid. 148 Later in 1995, the South
African legislature passed a law giving greater shape to the terms of the
amnesty. 149 All the while, the constitutional assembly was revising the
interim constitution and, by the time the new constitution was ready in
1996, the document had retained all of the original stipulations pertaining to
amnesty. 150 Soon thereafter, the South African Constitutional Court upheld
the constitutionality of those constitutional and legislative protections—and
went another step further, declaring that the conferral of amnesty would
result in a free and clear absolution from criminal and civil liability. 151
Ghana provides a third example of entrenching amnesty in the interest of
peace and a sustainable ceasefire. As the first country on the African
continent to break free from its colonial irons in 1957, 152 Ghana struggled
through early difficulties in cementing a constitutional culture committed to
145. See Promotion of National Unity and Reconciliation Act 34 of 1995 (S. Afr.).
146. See Michael P. Scharf, From the eXile Files: An Essay on Trading Justice for Peace,
63 W ASH. & LEE L. REV. 339, 346 (2006).
147. See, e.g., Stefano Betti, The Duty to Bring Terrorists to Justice and Discretionary
Prosecution, 4 J. INT’L CRIM. JUST. 1104, 1112 (2006); Paul Lansing & Julie C. King, South
Africa’s Truth and Reconciliation Commission: The Conflict Between Individual Justice and
National Healing in the Post-Apartheid Age, 15 ARIZ. J. INT’L & COMP. L. 753, 780–87 (1998).
148. S. AFR. (Interim) CONST. 1993.
149. Promotion of National Unity and Reconciliation Act 34 of 1995 (S. Afr.).
150. S. AFR. CONST. 1996.
151. The Azanian Peoples Organization v President of the Republic of South Africa 1996
(4) SA 671 (CC) (S. Afr.).
152. David E. Apter, Nkrumah, Charisma, and the Coup, 97 DAEDALUS 757, 757 (1968).
the rule of law. Ravaged by nearly eleven coups or coup attempts since its
independence, 153 Ghana had little chance to know anything but political
volatility, which slowed economic growth and investment in the new
constitutional state. 154 Nearly four decades after its independence, the proud
African country struck an agreement to create an innovative ceasefire
constitution in 1992, entrenching amnesty for those who had been involved
in triggering and exacerbating the socio-political instability years before. 155
The goal—to leave the past to itself and to allow those in the present to start
afresh—was, and remains, laudable.
Although reconciliation is a noble ambition in civil society, particularly
for countries embarking on significant political and social reconstruction,
reconciliation has proven elusive when undertaken in the context of
constitutional entrenchment. Forcing former enemies to lay down their arms
and enter into an uncomfortable embrace gives rise to a palpable, and quite
rational, sense of unease about the sustainability of such illusory truces.
That this rough manner of peacemaking cannot quell passions, whether over
the long-term and surely not overnight, is clear. For reconciliation requires
surgical patience and precision—something that is not in the toolkit of
constitutional designers.
The Nigerien example is proof positive. This failed effort could not be
more illustrative of the hazard posed by relying on a constitutional text to
shape and constrain human emotions as untamable as grief, fear, hatred, the
irrepressible urge for retaliation and the primal need for vengeance. Not
even one year elapsed after the Nigerien Constitution had conferred
amnesty upon wrongdoers before the country descended yet again into the
marshlands of the mayhem that only mutinies, coups and kidnappings of
public officials can wreak upon an already weakened state.156 This extreme
political volatility continued through 2002 with sustained kidnapping
attempts and mutinies, and even talk of another coup—which is precisely
what the new constitution had been written to prevent. 157 True, the
resentment that fuelled these alarming incidents is unlikely to have resulted
from only the entrenchment of a reconciliatory provision. Nevertheless, the
153. Patrick J. McGowan, African Military Coup d’État, 1956-2001: Frequency, Trends
and Distribution, 41 J. MODERN AFR. STUD. 339, 363–64 (2003).
154. Kwame Boafo-Arthur, Ghana: Structural Adjustment, Democratization, and the
Politics of Continuity, 42 AFR. STUD. REV. 41, 47 (1999).
155. See CONSTITUTION OF THE REPUBLIC OF GHANA sch. 1, pt. IV, §§ 34, 37 (1992).
156. AMNESTY INT’L, INDEX NO. AFR 43/001/2000, NIGER: THE RIGHT TO JUSTICE (2000),
available at http://www.amnesty.org/en/library/info/AFR43/001/2000.
157. Sophia Moestrup, Semi-Presidentialism in Niger: Gridlock and Democratic
Breakdown—Learning from Past Mistakes, in SEMI-PRESIDENTIALISM OUTSIDE EUROPE: A
COMPARATIVE STUDY 105, 117 (Robert Elgie & Sophia Moestrup eds., 2007).
prevailing winds charged that Niger’s choice to entrench amnesty
protections had effectively been a choice to enshrine a culture of impunity
in its constitution. 158 In light of this, it is problematic to argue that
entrenching amnesty has birthed the new beginning that Nigeriens had
hoped would come from reconciliatory entrenchment.
Reconciliatory entrenchment is perhaps the most evocative of the
handcuffs that allows us vividly to conceptualize the physical and
psychological confinement to which entrenchment clauses consign citizens.
From the perspective of victims of the often heinous acts that lead to
entrenching reconciliatory measures, amnesty and immunity narrow the
range of options for seeking—and also tapers the prospect for actually ever
achieving—justice. Apart from pursuing vigilante justice or learning to live
with the pain of an unrequited loss, few alternatives remain for a victim
when the state disclaims its duty to prosecute those citizens whose behavior
has harmed others. That is not to suggest that reconciliation cannot, nor
should not, be the province of the state. Yet to impose it, rather than to
invite it, raises critical questions of social design that illuminate some of the
limitations of reconciliatory entrenchment, namely the corresponding and
resultant entrenchment of victimhood. So rather than reinforcing the
underlying premises of citizenship—namely self-definition, shared values,
and collective decisionmaking—reconciliatory entrenchment undermines
the popular choice that citizenship presupposes.
IV. THE ENTRENCHMENT SIMULATOR

No right is more constitutive of citizenship than the power to amend the
constitution. For a constitutional amendment derives from the highest of all
democratic values: popular choice. The process of amending the
constitution strikes at the heart of what it means to be a people whose
disparate members have joined together in a common venture to define
themselves as a collective and to build and sustain the apparatus of their
state.
To withhold from citizens the power of constitutional amendment is to
withhold more than a mere procedural right. It is to hijack their most basic
of all democratic rights. Nothing is more democratically objectionable than
dispossessing citizens of the power to rewrite the charter governing the
158. See, e.g., AMNESTY INT’L, INDEX NO. AFR 43/007/1999, NIGER: IMPUNITY-AS
ENSHRINED IN THE CONSTITUTION (1999), available at http://www.amnesty.org/en/library/
info/AFR43/007/1999/en; Amnesty Approved for Niger Coup Crimes, BBC NEWS, Jan. 6, 2000,
available at http://news.bbc.co.uk/2/hi/africa/593268.stm; Amnesty for Coup Plotters in Niger,
BBC NEWS, Dec. 31, 1999, available at http://news.bbc.co.uk/2/hi/africa/585339.stm.
boundary separating the citizen from the state, and citizens from
themselves. Sequestering this democratic right commandeers the
sovereignty that gives democracy its meaning and throws away the key to
unlock the handcuffs that constitutions fasten to the wrists of citizens.
A. The Expressive Function of Entrenchment

There is good reason, though, to design constitutions so as to handcuff
the wrists of citizens. Citizens are, after all, self-interested individuals
whose first instinct is more often inward-looking and self-regarding than
oriented toward the larger, and more public, interests of the community. At
their best, constitutions mold disparate persons into members of a joint
undertaking who ultimately join together to become, and to see themselves
as, citizens of the state.
Constitutions achieve this high ambition by facilitating the development
of social conscience, and of a social consciousness, among the citizens of
the state in three ways. First, by setting down markers distinguishing proper
from improper conduct both by the state toward citizens, and by citizens
toward themselves. Second, by clearly demarcating the respective spheres
of jurisdiction for the institutions of the state. And, third, by constructing
the archetype of a just or ideal society to which citizens and the institutions
of the state alike should aspire.
Entrenchment aims—though falls wide of the mark in its attempt—to
fulfill the function of creating a model society. It fails in its mission because
it lacks legitimacy insofar as its dictates derive not from the freely given
consent of the people but from the often unwelcome and self-imposed will
of the past. It is this disconnect—between the aspiration to shape shared
values and the coercion to adopt those values—that dooms entrenchment to
failure. Nevertheless, entrenchment expresses an important message not
only to those bound by the terms of the written constitution but likewise to
those outside observers curious to discern the bases and principles upon
which stand that particular constitutional state.
In addition to setting apart a legal principle, social or moral value,
governmental structure or political rule from other constitutional provisions,
entrenchment also conveys the symbolic value of that principle, value,
structure or rule 159 —the symbolic value that the constitutional entrenchers
attributed to it precisely by entrenching it. This purely expressive function
of entrenchment doubles as the core of its merit: deploying symbolic
159. Jon Elster, Constitutionalism in Eastern Europe: An Introduction, 58 U. CHI. L. REV.

447, 471 (1991).
statements—as opposed to using force or other forms of compulsion—to set
or correct social norms. 160 That purposeful symbolism is the subtle, yet
paradoxically the most powerful, virtue of entrenchment. For by identifying
a constitutional feature of statehood as unamendable, entrenchment signals
to citizens just as it does to observers what matters most to the state by
fixing the palette of non-negotiable colors in its self-portrait.
The expressive function of entrenchment is not unlike the expressive
function of constitutionalism or constitutional law. As Ashutosh Bhagwat
writes, when judges interpret the constitution, they proclaim the values that
constitute the constitutional culture of the state even as they shape those
values. 161 Thus when courts engage in constitutional judicial review, they
give “concrete expression to the unarticulated values of a diverse nation.”162
Yet entrenchment does more than merely express a symbolic statement of
unarticulated values. It makes an unvarnished definitive statement about the
values that do and should bind citizens to the state, and citizens to
themselves. There is nothing unarticulated about entrenchment. Quite the
contrary, the very fact of entrenchment removes any specter of doubt as to
what should be the values of the state.
An important distinction emerges in constitutional scholarship on this
point. Scholars distinguish between the expressive and communicative
functions of a constitutional text. 163 The former—expression—refers to an
act or omission that unintentionally conveys meaning while the latter—
communication—refers to an actual intent to convey meaning. Expression
may as a consequence of this distinction occur and exist on its own without
communication. For instance, a person may act or fail to act in such a way
as to express an affinity for someone or something but that person may not
have intended to communicate that affinity. Therefore expression, which is
subject to evolving interpretations from third party observers, is a gesture
dissociated from intent. In contrast, communication is a gesture whose
purpose is indeed to convey an intent and whose meaning is usually settled
by the communicator herself. Insofar as the very nature of entrenchment
entails a similarly constraining intent to communicate the importance of a
principle, value, structure or rule, entrenchment goes beyond simply
performing an expressive function. Entrenchment openly marries
160. See Cass R. Sunstein, On the Expressive Function of Law, 144 U. PA. L. REV. 2021,
2024–25 (1996).
161. Ashutosh Bhagwat, Hard Cases and the (D)Evolution of Constitutional Doctrine, 30
CONN. L. REV. 961, 1002 (1998).
162. PHILIP BOBBITT, CONSTITUTIONAL FATE: THEORY OF THE CONSTITUTION 211 (1982).
163. See, e.g., Elizabeth S. Anderson & Richard H. Pildes, Expressive Theories of Law: A
General Restatement, 148 U. PA. L. REV. 1503, 1508 (2000).
expression with communication by, first, clearly identifying a constitutional
provision as unamendable and, second, just as clearly manifesting the intent
to convey the meaning behind the decision to have made that provision
unamendable.
That constitutional entrenchment merges expression with communication
raises two concerns, each of which, on its own, divests entrenchment of the
legitimacy that is the lifeblood of constitutionalism. First, the effect of
blending expression and communication is to weaken the potent persuasive
subtlety of the expressive force of entrenchment. Standing alone, expressive
entrenchment seeps inconspicuously into the consciousness of citizens,
slowly but assuredly taking root in the collective spirit of the citizenry. But
when this intention is communicated outright, our intuition raises red flags
about the motives behind the wish to instill the values entrenched in the
constitution. Much better to use the constitutional text to make expressive
statements about rights and values, and therefore to allow citizens to reach
their own conclusions about the worth of particular values and which ones
they wish to adopt as their own, than to impose them from the top
downward.
Second, the risk inherent in authorizing the state or founding drafters to
reveal their intent to impose values on a class of citizen subjects—as is the
case when expression and communication are combined—is that the chosen
values may not find a welcome home in the individual hearts and the shared
mores of those citizens. The costs incurred in entrenchment exceed its
benefits when what we seek to entrench stands in conflict, and if not in
conflict then in some tension, with existing or future beliefs or convictions.
This echoes the stakes in the tug of war pitting constitutional structure
versus political culture, the former mistakenly assuming that it can actually
dictate the content of the latter. There is a grave danger in presuming that a
constitutional structure, for instance entrenchment, can shape political
culture, specifically social values. Indeed, the continuing dialogue about
this very matter—a dialogue that is unlikely to achieve resolution any time
soon 164 —demonstrates only one point beyond doubt: that constitutional
structure and political culture enjoy a bi-directional relationship in which
the form and fate of one is linked to the fate and form of the other.
164. See, e.g., Daniel Halberstam & Roderick M. Hills, Jr., State Autonomy in Germany
and the United States, 574 ANNALS AM. ACAD. POL. & SOC. SCI. 173, 178 (2001); Gary Jeffrey
Jacobsohn, The Permeability of Constitutional Borders, 82 TEX. L. REV. 1763, 1775–76 (2004);
Peter Krug, Civil Defamation Law and the Press in Russia: Private and Public Interests, the
1995 Civil Code, and the Constitution, 14 CARDOZO ARTS & ENT. L.J. 297, 336–37 (1996);
Roger B. Myerson, Economic Analysis of Constitutions: The Strategic Constitution, 67 U. CHI.
L. REV. 925, 928–29 (2000); Robert C. Post & Reva B. Siegel, Protecting the Constitution from
the People: Juricentric Restrictions on Section Five Power, 78 IND. L.J. 1, 3 (2003).
Therefore, the critical institutional design challenge to breathing
legitimacy into constitutional entrenchment is to find a way to isolate its
redeeming expressive function from its unproductive communicative
function. And that is just what I hope to do. With the entrenchment
simulator that I shall unveil in the pages to follow, I will endeavor to
achieve twin goals. First, I will aim to capture the salutary expressive
essence of entrenchment within the entrenchment simulator. And second, I
will seek to disengage entrenchment from its the problematic consequence
of constraining popular choice and preempting self-definition. The
immediate purpose of the entrenchment simulator is to signal important
social pre-commitments. But its larger purpose is to create sufficient space
within which those pre-commitments may evolve over time, as of necessity
they must.
B. The Challenge of Constitutional Democracy

But before I proceed to introduce the entrenchment simulator, we must
first return to the question that began this inquiry: what is the proper
balance between constitutionalism and democracy? This is of course harder
said than done. Despite the richness and diversity of constitutional texts
around the world, it is difficult to identify a constitutional state whose
constitutional text has successfully managed to solve the enduring tension
between constitutionalism and democracy. Granted, it may be too much to
expect of constitutional designers to do anything but modestly lessen that
tension. After all, scholars have long recognized its inevitable
persistence, 165 some even arguing that there is merit to the tension itself and
that we should not resolve it. 166
If successful efforts to assuage the tension are few and far between, quite
the contrary is true of constitutional texts that veer too sharply toward either
constitutionalism or democracy. Begin first with the former. Above, I have
chronicled and illustrated how constitutional states privilege
constitutionalism at the expense of democracy by entrenching discrete
165. See, e.g., Kim Lane Scheppele, Parliamentary Supplements (Or Why Democracies
Need More than Parliaments), 89 B.U. L. REV. 795, 807 (2009); Mark Tushnet, The Hartman
Hotz Lecture: Dialogic Judicial Review, 61 ARK. L. REV. 205, 206 (2009).
166. See, e.g., JOHN AGRESTO, THE SUPREME COURT AND CONSTITUTIONAL DEMOCRACY
165–67 (1984); Matthew C. Stephenson, “When the Devil Turns . . . ”: The Political
Foundations of Independent Judicial Review, 32 J. LEGAL STUD. 59, 85–86 (2003); George
Thomas, The Tensions of Constitutional Democracy, 24 CONST. COMMENT. 793, 797 (2007)
(reviewing WALTER F. MURPHY, CONSTITUTIONAL DEMOCRACY: CREATING AND MAINTAINING A
JUST POLITICAL ORDER (2007)).
constitutional provisions. 167 But there exists something far worse than that:
constitutional states which entrench the entire constitutional text—each and
every constitutional provision—instead of a mere single provision or a few
provisions.
To find what is perhaps the most egregious example of a constitutional
text that elevates constitutionalism so high above democracy as to render
democracy virtually meaningless, we must look to Mexico. True, Mexico
permits amendments to its constitution provided that the amendment is
approved by a two-thirds supermajority of the national legislature and a
majority of the subnational legislatures. 168 But that is the extent of the
revisions or additions permitted by the constitution. Anything more than
discrete amendments to the text is expressly forbidden insofar as the
constitution does not contemplate, and indeed rejects, the possibility of a
new constitution ever being created to replace the existing one—even if a
popular revolution ensues. 169 The Mexican Constitution consequently
makes revolution illegitimate and deprives it of any force of reason before
one is ever launched.
That the Mexican Constitution tilts so militantly in favor of
constitutionalism as to outlaw revolution—which is the very apex of
democratic mobilization and popular will—should concern anyone infused
with the democratic spirit and otherwise committed to the core democratic
principles of popular choice and self-definition. The importance of this
point cannot on any conceivable grounds be overestimated because its
implications are just that colossal. For the Mexican Constitution takes a
radical position that effectively holds time and space forever constant, never
permitting the kind of political change that has made possible the great
democratic transformations in human history, namely the constitutional
birth of the United States in 1787, 170 the founding of the first French
Republic in 1789, 171 or the social renewal of South Africa in 1996. 172 These
possibilities are foreclosed to Mexicans, even if conditions in their state
deteriorate so intolerably as to require broad popular mobilizations to
reclaim the nation from a despot or illegitimate rulers. There may, therefore,
be no better example than the Mexican Constitution to demonstrate how the
167. See supra Part III.

168. CONSTITUCIÓN POLÍTICA DE LOS ESTADOS UNIDOS MEXICANOS [Const.], as amended,
tit. VIII, art. 135, 5 de Febrero de 1917 (Mex.).
169. Id. tit. IX, art. 136, 5 de Febrero de 1917 (Mex.).
170. See DAVID O. STEWART, THE SUMMER OF 1787: THE MEN WHO INVITED THE
CONSTITUTION (2008).
171. See HORACE MANN CONAWAY, THE FIRST FRENCH REPUBLIC (1902).
172. See HEATHER DEEGAN, SOUTH AFRICA REBORN: BUILDING A NEW DEMOCRACY
(1999).
reverence for written constitutionalism has in some constitutional states
suppressed democracy and prevented citizens from exercising their
legitimate authority to change or chart the constitutional course of their
state.
But let us also recognize that constitutional states can just as well
commit the contrary though equally objectionable offence, that is to say,
privileging democracy at the expense of constitutionalism. 173 Switzerland is
the paradigmatic model of a state where procedural democracy is the
highest value. Long regarded as the modern cradle of direct democracy, 174
Switzerland has accordingly conferred upon itself a constitution that grants
unreviewable power to its citizens, placing no matter of law, rights or policy
beyond their reach. Citizens may vote in referenda to overrule legislation,
revise and reverse matters of social policy, reconfigure the organs of the
state, and engage in wholesale constitutional change. 175 And Swiss citizens
may do all of this with a bare majority. 176
That Swiss citizens have the final say in constitutional matters is not out
of the ordinary. American citizens, for example, retain determinative control
over their constitution, provided they can muster the requisite
supermajorities to successfully navigate the amendment process.177
However, what makes the Swiss model so exceptional in its inclination
toward majoritarian democracy and in its disinclination toward
constitutionalism is that, quite unlike the United States and other leading
liberal democracies, Switzerland does not allow judicial review of federal
legislation. 178 This is consistent with the theme that runs through the entire
Swiss public constitutional apparatus: majoritarian public choice. Whereas
courts typically function as the supervisory force against the threat of
majoritarianism in liberal democracies, courts in Switzerland have no such
173. One particularly fascinating example that appears to privilege democracy at the
expense of constitutionalism, yet actually does the reverse, is the El Salvadorian Constitution,
which obliges citizens to mount an insurrection in the event that an entrenched rule is violated.
See CONSTITUCIÓN DE LA REPÚBLICA DE EL SALVADOR [Constitution], tit. III, art. 88 (1983) (El.
Salv.). While this would appear to celebrate the democratic mobilization without which
insurrection would be impossible, the implicit purpose of that mobilization actually undermines
the popular choice and self-definition that mobilization presupposes—precisely because the
constitutional text commands eternal obedience to an unchangeable constitutional rule.
174. See, e.g., KRIS W. KOBACH, THE REFERENDUM: DIRECT DEMOCRACY IN SWITZERLAND
(1993); Peter Sager, Swiss Federalism: A Model for Russia?, 1995 ST. LOUIS-WARSAW
TRANSATLANTIC L.J. 163, 164 (1995).
175. CONSTITUTION FÉDÉRALE DE LA CONFÉDÉRATION SUISSE, April 18, 1999, SR 101, RO
101, art. 138–41 (Switz.).
176. Id. art. 142.
177. U.S. CONST. art. V.
178. See Nicholas Aroney, Formation, Representation and Amendment in Federal
Constitutions, 54 AM. J. COMP. L. 277, 286 (2006).
role. No check, therefore, constrains the majoritarian wishes—or more
accurately, the impulses—of Swiss citizens.
This unbridled Swiss majoritarianism is just as alarming as the Mexican
constitutional entrenchment is restrictive. Both do equal parts injustice and
harm to popular choice, the former because it fails to test the strength and
sustainability over time of that choice, and the latter because it gives
insufficient respect to it. And that is the harm in subscribing
indiscriminately to either constitutionalism or democracy without
recognizing that each has strengths that compensate for the weakness of the
other.
Our challenge, then, is to make peace between constitutionalism and
democracy. Resolving the tension between them will require, first, building
on their respective strengths and compensating for their respective
weaknesses and, second, fashioning a constitutional structure that will make
real the promise that both hold for humanity. This, in my view, is no small
feat insofar as it demands the design of a constitutional device exhibiting
three components: (1) entrenchment; (2) expression; and (3) an escape
hatch.
Before I outline each of these three items, let me say a short word on
each. First, the text need not necessarily entrench a legal principle, social or
moral value, governmental structure or political rule. But if it does, it should
not resort to indefinite constitutional entrenchment. The text should instead
entrench that principle, value, structure or rule in a way that corresponds to
the fourth station of entrenchment—which I call heightened constitutional
entrenchment 179 —pursuant to which the constitutional text demands special
procedures (which depart from the default constitutional amendment
procedures) to amend that entrenched item. Second, it is preferable to
enshrine some degree of entrenchment beyond the third station of
entrenchment—which I call conventional constitutional entrenchment 180 —
because of the expressive and symbolic value that only a special form of
entrenchment can convey. And since the fifth and final station—indefinite
constitutional entrenchment—is much too constraining, only the fourth
station remains as a possibility. 181
Finally, we cannot resolve the tension between constitutionalism and
democracy merely by tilting the scales less so in favor of constitutionalism.
We must instead make a very real effort to actualize the underlying premise
of procedural democracy while, nonetheless, guarding against the menace
of majoritarianism. We can achieve this balance if, alongside the use of
179. See discussion supra Part II.A.

some degree of constitutional entrenchment, we grant citizens an escape
hatch to pull if they wish to extricate themselves from the handcuffs that
entrenchment wraps around their wrists. That escape hatch is provided by
the fourth station of entrenchment—heightened constitutional entrenchment
—precisely because it does not consign citizens to life under indefinite
constitutional entrenchment but rather allows them to exercise their popular
choice. It is true, however, that citizens exercise their popular choice under
constrained conditions, but this restriction on democracy is both politically
useful and socially vital in a liberal democracy.
C. Designing Constitutional Democracy

The entrenchment simulator achieves each of these three objectives. It is
a constitutional structure whose aim is to reconcile constitutionalists with
democrats by pooling the virtues of constitutionalism and democracy, and
by mitigating their respective limitations. The entrenchment simulator
creates a new constitutional arrangement whose function is to govern both
the content and timing of constitutional amendments. Were constitutional
states to adopt this entrenchment simulator, they would achieve the
expressive benefits of constitutional entrenchment while not compromising
the popular choice and self-definition underlying procedural democracy.
Three elements form the basic apparatus of the entrenchment simulator:
(1) interim induction; (2) constitutional rank; and (3) sequential approval.
The first, interim induction, seeks to respond to the challenge that confronts
constitutional designers when they endeavor to introduce, and in so doing to
entrench, new values into the national consciousness. Constitutional
designers may often face resistance from citizens, who may for various
reasons be unreceptive to new values; for instance, a new founding
commitment to preserving federalism or unitarism; presidentialism or
parliamentarism; republicanism or monarchism; religion or secularism; or a
commitment to transforming the state through civil and political rights or
through electoral procedures, or even a new founding commitment to
reconciliation. In order to allow sufficient opportunity for the new values to
take root in the citizenry, the entrenchment simulator mandates a period of
induction—measured from the date the entrenchment comes into force—
during which those newly entrenched values enjoy absolute immunity from
constitutional amendment. Not even unanimity may overturn the entrenched
provision.
Induction serves an important function. Insofar as there are long odds
facing any attempt to deploy constitutional structure to shape political
culture, induction helps facilitate the process of infusing new values into the
lives and being of citizens. Induction—by which I mean a period of
acculturation during which new constitutional values introduced by
entrenchment are assimilated—gives those new values a chance to take root
and, once rooted, to remain in the consciousness of citizens. Consider it a
mandatory trial run whose animating hope is that, by the end of the
designated induction stage, what may have been viewed initially as
controversial or foreign values imposed by elites ultimately become
ingrained in the quilt of state and the fabric of citizenship—so deeply that
they become constitutive of nationhood, just as the constitutional framers
had hoped.
Absent this period of courtship between the text and the citizen, a
constitutional state may never be fully capable of making a clean break
from the past and charting a new direction. With the possibility looming of
a constitutional amendment returning the state to days past or changing
constitutional clothes yet again, there is no assurance that the vision of the
framers will ever be given a real opportunity to take hold. But induction
creates and cultivates that opportunity.
Just how long this period of induction should last before citizens may
once again reclaim their right to amend the constitution is a difficult matter.
On the one hand, limiting the induction period to a few years may be too
short a time span because it would be insufficiently long to inculcate
citizens with new values. On the other, extending induction to much more
than an entire generation, say over twenty years or so, may be too long
because it would approximate too closely the perilous conditions of
constitutional entrenchment we have canvassed above.
Looking to those constitutional states currently imposing a comparable
though not quite similar temporal restriction against amending new
constitutional provisions, we may conclude that they generally ban
amendments anywhere from five to ten years from the date of enactment. 182
Afterward, the constitutionally protected provision reverts to normal status
and may be freely amended according to the conventional rules of
constitutional amendment. Five or even ten years seems like much too little
182. See, e.g., THE CONSTITUTION OF THE STATE OF KUWAIT pt. V, art. 174 (disallowing
amendments within five years of the coming into force of the constitution); PERMANENT
CONSTITUTION OF THE STATE OF QATAR pt. V, art. 148 (disallowing amendments within ten
years of the coming into force of the constitution); see also CONSTITUIÇÃO DA REPÚBLICA
PORTUGUESA [Constitution] pt. IV, tit. II, art. 284(1) (Portugese Republic) (requiring a wait of
five years between each constitutional amendment, absent the agreement of 80% of the national
legislature); 1975 SYNTAGMA [SYN] [Constitution] 4, § 2, art. 110(6) (Greece) (imposing a
five-year wait between constitutional amendments); UNDANG-U NDANG DASAR REPUBLIK
DEMOKRATIS TIMOR LESTE [Constitution] pt. VI, tit. II, art. 154(2)–(4) (E. Timor) (forbidding
amendments fewer than six years apart, unless 80% of the national legislature agrees otherwise).
time to allow new values to permeate the state and its citizens. However,
one generation or more seems right, although each constitutional state
availing itself of the entrenchment simulator could of course tailor this time
period to its own indigenous needs and conditions. Still the principle
remains clear: induction—which entrenches a constitutional provision for
only an abbreviated period of time—serves the purpose of breathing new
values into citizens, fully consistent with what constitutional entrenchers
hope will transpire when a people confers a new constitution upon itself.
But induction on its own is insufficient to help right the balance between
constitutionalism and democracy. Without more added to our design, an
entrenched constitutional provision will revert to being a conventional
constitutional provision after the designated time has elapsed following the
interim induction period. The entrenchment simulator addresses this
problem with its second component: constitutional rank. To understand the
notion of constitutional rank, we must return to the fourth station of
constitutional entrenchment: heightened constitutional entrenchment.
What motivates constitutional designers who adopt indefinite
constitutional entrenchment is the conviction that certain features of the
state are more important, and if not more important then more constitutive,
of the state and its citizens. For that is the effect, either real or perceived or
both, of entrenching a legal principle, social or moral value, governmental
structure or political rule. Constitutional designers resort to indefinite
constitutional entrenchment to establish a hierarchy of constitutional
provisions, which represents an implicit rank ordering of constitutional
values. Indefinitely entrenched provisions are regarded by the framers as
not only qualitatively different but more valuable than the conventionally
entrenched provisions—and those framers hope that these entrenched
values will ultimately come to be seen as such both by citizens and third
party observers. This is the inevitable consequence of indefinite
constitutional entrenchment. By entrenching a particular feature of the
constitution, constitutional designers envelop that feature in a certain
measure of legitimacy—founding legitimacy, as opposed to continuing
popular legitimacy (though the two are not mutually exclusive)—which
results in elevating that feature above all other conventionally entrenched
constitutional provisions. The upshot of indefinite constitutional
entrenchment is that it creates tiers of significance among constitutional
provisions. That is what I mean by constitutional rank.
Using the concept of constitutional rank, the entrenchment simulator
establishes tiers of escalating significance among constitutional provisions.
But it does so in a way that retains the amendability of those constitutional
provisions designated as most important in the constitutional order.
Recalling that the entrenchment simulator rejects indefinite constitutional
entrenchment as illegitimate and imprudent, the alternative that presents
itself is heightened constitutional entrenchment. Two positive benefits flow
from inviting constitutional states to rely on heightened constitutional
entrenchment in their constitutional design. First, heightened constitutional
entrenchment exercises the same expressive function as indefinite
constitutional entrenchment, signaling both to citizens and to third party
observers what is thought to be most important about the state: its design
and its citizens. Second, it goes beyond simply distinguishing between the
two tiers of entrenchment—indefinite constitutional entrenchment and
conventional constitutional entrenchment—that we discern in constitutional
states deploying indefinite constitutional entrenchment. Rather, heightened
constitutional entrenchment folds within itself an infinite possibility of tiers
of entrenchment that constitutional designers can use to distinguish among
several tiers of constitutional provisions. Those possibilities range from
conventional constitutional entrenchment to multiple incarnations of
heightened constitutional entrenchment, but they exclude indefinite
constitutional entrenchment.
We might imagine, for example, a hypothetical presidential state
designating four tiers of constitutional provisions. 183 The fourth, and lowest,
tier could include the basic structural provisions of the constitution, namely
providing that the chambers of the bicameral national legislature consist of
300 representatives in the lower house and 100 senators in the upper house.
This bottom tier would be subject to the default rules of constitutional
amendment mandated in the constitutional text. Let us posit, in this
instance, that the default rule for amending the constitution requires two-
183. I use four tiers only as an example to accentuate the possibilities for innumerable tiers
of constitutional provisions. Some countries use fewer, or more, tiers to categorize their
constitutional provisions, in the process signaling to citizens and to observers just what is more
or less important than others. It is plainly a rank-ordering of constitutional principles and values.
See, e.g., Commonwealth of Australia Constitution Act, 1900, ch. VIII, art. 128 (creating two
tiers of constitutional provisions, each requiring adherence to different rules of amendment);
Part V of the Constitution Act, 1982, Schedule B to the Canada Act 1982, ch. 11, §§ 41–47
(U.K.) (establishing roughly one half-dozen tiers of constitutional provisions, each with its own
corresponding amendment threshold); CONSTITUTION OF THE REPUBLIC OF GHANA ch. 25, §
290–91 (establishing two tiers of constitutional provisions and two different rules for amending
provisions in each tier); CONSTITUTION OF THE REPUBLIC OF RWANDA tit. XI, art. 193 (creating
two tiers of constitutional provisions, each with its own corresponding threshold for
amendment); CONSTITUTION OF THE REPUBLIC OF SOUTH AFRICA NO. 108 OF 1996 ch. 4, § 74
(distinguishing among nearly one half-dozen tiers of constitutional provisions, each with its own
amendment threshold); CONSTITUTION OF THE KINGDOM OF SWAZILAND ACT ch. XVII, § 245–
47 (distinguishing among four tiers of constitutional provisions and four different rules for
amending the provisions in each tier).
thirds concurrence of each chamber as well as two-thirds concurrence of the
subnational legislatures.
Moving upward along our constitutional hierarchy, the third tier of
constitutional provisions would require a more exacting threshold for
amending the constitution—say, three-quarters concurrence of each
chamber and three-quarters of the subnational legislatures—and consist of
constitutional provisions thought by the framers to be more important than
the simple distribution of seats in the bicameral legislature, for instance
term limits on presidential service. In the second tier, which could include,
just as an example, a constitutional provision requiring the president and the
bicameral national legislature to pass a balanced budget each year, the rule
for amending the constitution would be tougher even still: three-quarters
approval of each legislative chamber and three-quarters of the subnational
legislatures.
Finally, the first and highest tier of constitutional rank in our
hypothetical could conceivably include a rule that is so deeply
interconnected with the founding moments of the state—consider perhaps
the secular nature of the state—that it requires an even more exigent
quantum of popular and legislative approval: three-quarters approval from
both the bicameral national legislature and the several subnational
legislatures as well as three-quarters approval of the citizenry in a
referendum.
Constitutional rank, then, is the incarnation of heightened constitutional
entrenchment. For when one invokes the latter, one is by implication
declaring that there exists an echelon of merit according to which each
constitutional provision may be classified. If a principle, value, structure or
rule is regarded as minimally more important than a conventional
constitutional provision but less important than the most important
constitutional feature of the state, then it should be categorized according to
the lowest level of heightened constitutional entrenchment—the lowest
constitutional rank within that degree of entrenchment. Conversely, if it is
viewed as markedly more important than a conventional constitutional
provision and minimally less important than the most important
constitutional feature of the state, then it should be categorized according to
the highest level of heightened constitutional entrenchment—otherwise
understood as the highest constitutional rank within that degree of
entrenchment.
Constitutional designers may accordingly enjoy the sweet without
suffering through the sour if they adopt this strategy, because it bestows
upon the constitution and the state the expressive benefits of entrenchment
while not weakening the democratic core of the citizenry. By highlighting
the richness of entrenchment possibilities that lie between conventional
constitutional entrenchment and indefinite constitutional entrenchment,
heightened constitutional entrenchment and its incarnation in the notion of
constitutional rank demonstrates the merit of this second feature of the
entrenchment simulator.
Now, having reached the third element of the entrenchment simulator,
the entire mechanism begins to take final shape. If induction serves the
purpose of creating a safe harbor within which constitutional framers may
endeavor to shape the contours of and instill new values into citizens, and if
ranking allows framers to express both implicitly and explicitly what they
deem most constitutive of statehood and citizenship, then the third
element—sequential approval—is the mechanism through which citizens
may manifest their intention to free themselves from the handcuffs that the
constitutional entrenchers have wrapped around their wrists. It is, in short,
the escape hatch that citizens can pull to liberate themselves from the past
and to propel themselves into their own self-defined collective future.
Sequential approval requires that citizens express their freely-given
views on whether to amend a particular constitutional provision falling
within a class of heightened constitutional entrenchment. But sequential
approval requires that citizens express their consent to such an amendment
more than once, in at least one initial and one subsequent confirmatory vote,
and according to a clearly delimited majority defined in the constitutional
text. Although the actual majority threshold would presumably vary from
one constitutional text to another—as would the number of times that
citizens would be required to reach that particular majority in different votes
separated by a constitutionally defined period of time—the principle
remains the same despite any wrinkles that may exist among constitutional
states adopting the entrenchment simulator.
Let us deconstruct the following hypothetical constitutional rule
mandating sequential approval: “In order to be approved, an amendment to
[provision x] shall require a supermajority of eligible citizens to vote in
favor of the amendment on two separate occasions separated by five full
years as of the day of the first vote.”
We should note three things about this hypothetical rule. First, the
threshold for amendment is high: a supermajority of citizens. Second, the
confirmatory vote occurs only in the event of a successful supermajority
vote in favor of the amendment at the initial vote. Third, the confirmatory
vote is separated from the initial vote by five full years, which would mean
in most constitutional democracies that there had been intervening
legislative or executive elections, or both. This is significant for three
reasons: namely that the supermajority threshold tests the strength and
intensity of popular will for an amendment; that the five-year waiting period
would verify the sustainability over time of the popular choice to amend the
constitution; and that the intervening elections would have afforded
electoral candidates the opportunity to voice their opinion on the
amendment at a time when citizens would have been most likely to engage
attentively to the ongoing political discourse. Of course, this hypothetical
constitutional rule is just that—hypothetical.184 Nevertheless, it lays bare the
usefulness of sequential approval.
Recall our baseline premise: we must mitigate the menace of
majoritarianism, which typically manifests itself in mob mentality that
prefers to act on emotion in the immediacy of the moment rather than to
take the necessary time to deliberate carefully and critically about the
proper course of action. Requiring sequential approval helps ensure that the
popular will accurately reflects the considered and thoughtful judgment of
the citizenry instead of its most primal predispositions, which is precisely
the source of our discomfort about majoritarianism. Quite apart from the
temporal element of sequential approval, combining time and threshold
makes it even harder to amend a provision that has been entrenched
pursuant to heightened constitutional entrenchment because it requires a
special majority to do so. That citizens in favor of reversing the entrenched
provision must meet the designated special majority threshold more than
once is yet another way to mitigate majoritarianism. For were citizens to
form the requisite majorities successfully twice over the designated period
of time, it would rebut the presumption of the transient and fickle nature of
citizens—the very vices that raise concerns about majoritarianism.
That is the entrenchment simulator. It consists of three distinguishable
elements: first, an interim induction period, during which new values or
principles are given time to integrate into the constitutional culture of the
state and its citizens; second, a constitutional ranking arrangement, pursuant
to which constitutional designers may designate, with the use of heightened
constitutional entrenchment, different tiers of constitutional provisions on
the basis of their respective significance to the state; and third, a
requirement of sequential approval, which imposes both temporal and
184. Some constitutional states currently use a comparable technique for amendments to the
constitution. See, e.g., KONSTITUSIYA A ZERBAYCAN RESPUBLIKASININ [Constitution] § V, ch.
XII, art. 156 (Azer.) (requiring two sustained majority votes, each separated by a period of six
months); CONSTITUTION OF ERITREA ch. VII, art. 58 (1997) (providing that a constitutional
amendment must be approved by two separate votes one year apart). Haiti does something quite
interesting with respect to the timing of the coming into force of amendments: an amendment
that is passed by the national legislature does not become valid until after the installation of the
next duly-elected president. C ONSTITUTION DE LA RÉPUBLIQUE D’H AÏTI tit. XIII, art. 284–2.
This appears to be an effort to avert political self-dealing.
voting threshold obstacles to amending those entrenched constitutional
provisions. Each of these three elements, taken together, helps us address
the enduring tension between constitutionalism and democracy.
To recap the ground we have covered, let us reflect on the concern that
prompted our inquiry: many constitutional states have, to their liking and
with several different devices, resolved the tension between
constitutionalism and democracy in favor of constitutionalism, most notably
by indefinitely entrenching constitutional provisions beyond the reach of the
citizenry. The consequence of prohibiting citizens from exercising their
right to amend their own constitution is to divest citizens of their right to
self-definition and popular choice, in essence forever tying their hands with
no recourse ever to free themselves from their predicament. We should of
course expect that constitutions would handcuff citizens, in so doing
preventing them from taking actions that the state, the founding drafters, as
well as intervening generations of constitutional amenders deem improper
in that particular society at that particular time. But indefinite constitutional
entrenchment does not simply handcuff citizens—something that all
constitutions do, as they should. Indefinite constitutional entrenchment
throws away the keys to those handcuffs, consigning citizens into the
permanent custody of the entrenching generation.
Constructing a mechanism to return those keys to citizens is no easy
task. But the entrenchment simulator may hold promise for meeting that
challenge. In confronting the tension between constitutionalism and
democracy, the entrenchment simulator strikes a compromise between, on
the one hand, the unforgiving rigidity that is characteristic of indefinite
constitutional entrenchment and, on the other, the public autonomy that
democratic liberty entails. Three points are useful by way of summary.
First, the entrenchment simulator recognizes the importance of
entrenchment. But it privileges heightened constitutional entrenchment over
indefinite constitutional entrenchment because the former keeps the keys to
self-definition within the reach of citizens, however complicated the
labyrinthine rules to amend a provision subject to heightened constitutional
entrenchment may be. Second, the reason why the entrenchment simulator
looks so favorably upon some measure of entrenchment is precisely because
of the expressive value that entrenchment entails. Fixing common civic
objectives and anchoring the state in shared social and political values is
exceedingly important to creating and cultivating a community of citizens.
The entrenchment simulator latches onto expressiveness as the vital means
to that critical end.
Finally, the entrenchment simulator acknowledges that it is an event of
high moment to undertake the process of unentrenching a constitutional
provision whose drafters thought it was so foundational as to merit
entrenchment in the first place. That is why the entrenchment simulator
adds a temporal element to the task of amending an entrenched
constitutional provision. To guard against the perils of majoritarianism, the
entrenchment simulator calls for special majorities to express their
collective wish to unentrench an entrenched provision—not only on one
occasion, for instance a single referendum conducted on a single day, but
rather on multiple occasions over different periods of time. This last wrinkle
strives to ensure both that, in the interest of constitutionalism, a sustained
special majority has sufficient time to deliberate on the enormity of
amending an entrenched constitutional provision and that, in the interest of
democracy, citizens retain determinative decisionmaking authority to shape
their state.
V. CONCLUSION
Perhaps the tension between constitutionalism and democracy will never
quite fade. Constitutionalism and democracy are, after all, each anchored in
opposing visions of statehood and citizenship. The former orients itself
toward substantive principles that can often be achieved only by pinching
down on the procedural values that give meaning to the latter. And the latter
privileges civic participation in the very democratic processes that the
former constrains with rules about who may participate, when and how they
may do so, and toward what ends. It therefore seems unavoidable that
constitutionalism and democracy would sometimes clash, and that the
former would prevail in some contexts just as the latter would reign in other
contexts.
What is not inescapable, however, is that one would so dominate the
other as to reduce it to a mere shell of itself. Yet that is precisely what
results from entrenchment. When constitutional drafters entrench
constitutional provisions against amendment by even the most compelling
popular or legislative majorities, the consequence is to cast
constitutionalism in the leading role and to relegate democracy to the
background. Entrenchment invites constitutionalism to breathe in all of the
available oxygen, and in so doing it chokes democracy into submission. For
by divesting citizens of the fundamental civic right to popular choice and
self-definition, entrenchment undermines the promise of citizenship and the
possibilities of constitutionalism.
The entrenchment simulator begins the critical work of reversing the tide
of constitutionalism in constitutional states. The purpose of the
entrenchment simulator is not necessarily to elevate democracy over
constitutionalism. It is more modestly to right the balance that has
undeniably shifted away from democracy since the advent of the written
constitution. Indeed, if anything may be said about the preferences betrayed
by the entrenchment simulator, it is that it cedes to constitutionalism much
of the terrain once governed by democracy. But with good reason, given the
inherent dangers of majoritarianism that modernity has demonstrated with
sharp and disconcerting clarity.
There, nevertheless, remains much work left to do to strike the proper
balance between constitutionalism and democracy. The road ahead is
admittedly long. But the entrenchment simulator holds promise for
resolving this enduring tension—a tension that continues to define the
stakes in constitutional law and theory to this very day. Only by holding
firm to foundational principles of statehood and citizenship—namely the
freedom of popular choice, the right to self-definition, and the legitimacy of
public authority—may we ultimately achieve a comfortable consensus on
how rigidly constitutionalism may constrain democracy and what
democracy must surrender to constitutionalism.

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II. CONSTITUTIONAL ENTRENCHMENT.......................................................668

III. POPULAR RETRENCHMENT ....................................................................678

IV. THE ENTRENCHMENT SIMULATOR ........................................................698

1. The tension sets liberal constitutionalism in opposition to procedural democracy. See,

7. COSTITUZIONE [COST.] [Constitution] art. 139 (Italy).

II. CONSTITUTIONAL ENTRENCHMENT

62. See, e.g., JOSE ANTONIO CHEIBUB, PRESIDENTIALISM, PARLIAMENTARISM, AND

85. USTAV BOSNE I HERCEGOVINE [Constitution] art. X, § 2 (Bosn. & Herz.).

95. CONSTITUTION OF UKRAINE tit. XIII, art. 157.

IV. THE ENTRENCHMENT SIMULATOR

A. The Expressive Function of Entrenchment

159. Jon Elster, Constitutionalism in Eastern Europe: An Introduction, 58 U. CHI. L. REV.

B. The Challenge of Constitutional Democracy

167. See supra Part III.

179. See discussion supra Part II.A.

C. Designing Constitutional Democracy

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