19 International Journal of Constitutional Law 865 (2021)
34 Pages Posted: 15 Aug 2019 Last revised: 6 Jun 2023
Date Written: August 15, 2019
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
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