54 Pages Posted: 22 Sep 2009 Last revised: 27 Apr 2011
Date Written: February 10, 2010
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 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.
With the enduring tension pitting constitutionalism versus democracy as my backdrop, I endeavor in this paper to make three contributions to the scholarly literature. First, I improve the theoretical foundations of constitutional entrenchment by defining the varying degrees of constitutional permanence. Second, I develop an original taxonomy of entrenchment clauses, beginning with what I call preservative entrenchment, transformational entrenchment and reconciliatory entrenchment. And, third, in reaching the conclusion that entrenchment undermines the participatory values that give constitutionalism its meaning, I propose an alternative to entrenchment that I call the entrenchment simulator. In contrast to entrenchment clauses that render constitutional amendments a constitutional impossibility, the entrenchment simulator provides a promising alternative that both embraces the expressive function of entrenchment and remains consistent with the promise of constitutionalism.
Keywords: Comparative Constitutional Law, Democratization, Entrenchment, Constitutional Amendment, Constitutionalism, Democracy, Participatory Democracy, Procedural Democracy, Substantive Democracy
Suggested Citation: Suggested Citation
Albert, Richard, Constitutional Handcuffs (February 10, 2010). Arizona State Law Journal, Vol. 42, No. 3, 2010; Boston College Law School Legal Studies Research Paper No. 225. Available at SSRN: https://ssrn.com/abstract=1476308