Entrenchment Clauses in the History of Modern Constitutionalism

Abstract

This article examines the origins, differentiation, and migration of constitutional entrenchment clauses from the beginning of modern constitutionalism until today. It is based on a broad understanding of ‘entrenchment clauses,’ covering all constitutional provisions that make amendments either to certain parts of a constitution or under certain circumstances more difficult to achieve than ‘normal’ amendments or even impossible, i.e., legally inadmissible. In particular, the article answers three questions: (1) When, and in which contexts, did the different types of constitutional entrenchment clauses emerge? (2) How have these types spread globally? (3) Which constitutional subjects do such clauses protect, and thus, which main functions do they aim to fulfill? The article is based on the new and unique Constitutional Entrenchment Clauses Dataset (CECD), which comprises 860 written national constitutions worldwide from 1776 until the end of 2015.