Constitutional Locks

34 Pages Posted: 15 Aug 2019 Last revised: 7 Jul 2021

See all articles by Michael D. Gilbert

Michael D. Gilbert

University of Virginia School of Law

Mauricio Guim

Instituto Tecnológico Autónomo de México (ITAM) - Law School

Michael Weisbuch

University of Virginia School of Law

Date Written: August 15, 2019

Abstract

Legal designers use different mechanisms to entrench constitutions. This article studies one mechanism that has received little attention: constitutional “locks,” meaning forced waiting periods for amendments. We begin by presenting a global survey, which reveals that locks appear in 67 national constitutions. They vary in length from nine days to six years, and they vary in reach, with some countries “locking” their entire constitution and others locking only select parts. After presenting the survey, we consider rationales for locks. Scholars tend to lump locks with other tools of entrenchment like bicameralism and supermajority rule, but we argue that locks have distinct and interesting features. Specifically, we theorize that locks can cool passions better than other entrenchment mechanisms, promote principled deliberation by placing lawmakers behind a veil of ignorance, and protect minority groups by creating space for political bargaining. Legislators cannot work around locks, and because locks are simple and transparent, lawmakers cannot “break” them without drawing attention. For these reasons, we theorize that locks facilitate constitutional credibility and self-enforcement, perhaps better than other entrenchment mechanisms.

Keywords: entrenchment, constitutional amendments, constitutional design

Suggested Citation

Gilbert, Michael and Guim, Mauricio and Weisbuch, Michael, Constitutional Locks (August 15, 2019). International Journal of Constitutional Law (2021) Virginia Public Law and Legal Theory Research Paper No. 2019-50, Available at SSRN: https://ssrn.com/abstract=3437766

Michael Gilbert (Contact Author)

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

Mauricio Guim

Instituto Tecnológico Autónomo de México (ITAM) - Law School ( email )

Río Hondo No.1
Álvaro Obregón, Mexico City
Mexico

Michael Weisbuch

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

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