Credible Commitment or Paternalism? The Case of Unamendability

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