Eternity and Democratic Precommitment

Abstract

This chapter examines eternity clauses as mechanisms of constitutional precommitment and as tools for defending democracy in the face of anti-democratic forces. It looks at two broad categories of eternity clauses: provisions protecting state fundamentals and provisions defending democratic pluralism. It also analyses understandings of unamendability as either merely descriptive or as preservative of a core of liberal constitutionalism by assessing the operation of eternity clauses in practice. This chapter discusses unamendable provisions as dealing in imponderables and enshrining values that need judicial specification. It shows how precommitment and militant promise are entirely dependent on other elements of the constitutional architecture, in particular constitutional review. The chapter explains how this results in court self-empowerment and unduly limiting the scope of permitted constitutional change in the name of democracy.