Constitutional Narcissism on the Couch of Psychoanalysis: Constitutional Unamendability in Portugal and Spain
EUROPEAN JOURNAL OF LAW REFORM - Special issue on European Perspectives on Constitutional Unamendability (Lech Garlicki and Yaniv Roznai, Eds.), Forthcoming
41 Pages Posted: 24 Sep 2018
Date Written: 2018
Comparing the Portuguese Constitution, which has the longest unamendable clause in the world, with the silence of the Spanish Constitution regarding the language of eternity is indeed a fascinating exercise. Each State’s quantum of constitutional change seems to be quite different. One can wonder how two neighbour States, that share a heavy history of right-wing dictatorships and transitioned to democracy forty years ago, opted for such dissimilar constitutional designs. However, appearances are often misleading and an effort should be done to unveil this curious mismatch.
Both legal orders suffer from what I call constitutional narcissism, which manifests itself through the urge to perpetuate the foundational constitutional moment. Unamendable clauses (Portugal) and quasi-unamendable clauses (Spain) recast one of constitutional theory’s inner paradoxes: can the constituent power of the people be petrified in one historical constituent decision and constrain future democratic transitions? And what if a volatile contemporary majority seeks to undermine the democratic process and run against the constitutional DNA achievements of the last centuries?
Even if the original version of the Portuguese Constitution prohibited several provisions from ever being amended, some of these provisions were indeed modified or removed in the 1989 constitutional amendment process. This occurred without major disagreement from the political organs, scholars or the judiciary. Therefore, the vexata quaestio remains unanswered: given their obsolescence or hindrance towards good governance, should entrenchment clauses be eliminated de jure (through a channelled constitutional amendment process, such as the double amendment procedure) or de facto (through a revolutionary process materialised outside of the constitutional framework)?
Keywords: unamendable clause; eternity clauses; de jure and de facto constitutional change; constitutional narcissism; foundational design; quasi-unamendable clauses; helicopter founding fathers; constituent and constituted power; constitutional alma mater
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