Credible Commitment or Paternalism? The Case of Unamendability

An Unamendable Constitution? (Albert & Oder eds, 2018)

Posted: 3 Apr 2022

See all articles by Stephan Michel

Stephan Michel

University of Hamburg - Institute of Law and Economics

Ignacio Cofone

McGill University Faculty of Law

Date Written: February 8, 2022

Abstract

Constitutions have seen an increasing number of unamendable provisions over the last decades. We look at the functional value of unamendable provisions as commitment devices, as they are often described, and present a new theory based on unamendability as drafters’ paternalism. We find unamendable provisions to be undesirable commitment devices. The key problems that limit unamendable provisions’ desirability relate to preference changes over time and the risk of abuse by self-interested drafters. These problems can be more generally seen as risks of strong entrenchment. We then provide a new, functional perspective for unamendable provisions under a framework of paternalistic policies. In so doing, we take an incentive-based perspective of drafters, which stands in stark contrast to the assumption of drafters losing their self-interest during constitutional moments.

Keywords: unamendability, pre-commitment, paternalism, unamendable provisions, constitutional theory

Suggested Citation

Michel, Stephan and Cofone, Ignacio, Credible Commitment or Paternalism? The Case of Unamendability (February 8, 2022). An Unamendable Constitution? (Albert & Oder eds, 2018), Available at SSRN: https://ssrn.com/abstract=4029900

Stephan Michel

University of Hamburg - Institute of Law and Economics ( email )

Johnsallee 35
Hamburg, 20148
Germany

Ignacio Cofone (Contact Author)

McGill University Faculty of Law ( email )

3644 Peel Street
Montreal H3A 1W9, Quebec H3A 1W9
Canada

HOME PAGE: http://www.ignaciocofone.com

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