Author Interview: Eternity Clauses in Democratic Constitutionalism

Silvia Suteu

University College London

Silvia Suteu tells us about her book ‘Eternity Clauses in Democratic Constitutionalism’.

Tell us a little bit about the book. 

This book analyses unamendability in democratic constitutionalism and engages critically and systematically with its perils, offering a much-needed corrective to existing understandings of this phenomenon. The book takes seriously the democratic challenge eternity clauses pose and argues that this challenge extends beyond the old tension between constitutionalism and democracy. Rather, eternity clauses reveal themselves to be a far more ambivalent constitutional mechanism, one with greater and more insidious potential for abuse than has been recognised. 

What inspired you to take up this project? 

The research underpinning the book started during my time as a PhD researcher at Edinburgh Law School. At this time it had not yet been acknowledged that eternity clauses – that is. unamendable provisions in constitutions, or judicially-crafted doctrines of unamendability – were either as widespread as they are, or that they were continuing to spread, with newer jurisdictions opting for either formal or informal constitutional unamendability. The eternity clause in the German Basic Law and India’s basic structure doctrine were the most well-known examples. As a consequence of the particular circumstances in which these had been adopted and developed, unamendability was often seen as another tool of militant democracy aimed at resisting the disintegration of constitutional democracy through otherwise procedurally sound amendments.

But to my mind, there remained a gap: while we all accepted the tension between constitutionalism and democracy created by taking certain substantive amendments off the table, this tension tended to be understood in the same way as the age-old tension surrounding constitutional review. Views on constitutional courts striking down amendments on substantive grounds often tracked people’s positions in debates surrounding the legitimacy of judicial review. While exceptional in its effects, unamendability was thought to be justified as a measure of last resort against the most egregious of constitutional violations. In this story, constitutional change tended to be viewed in the negative, with amendments potential Trojan horses for constitutional subterfuge if not implosion. The courts would be the saviours of the constitutional order, wisely intervening at the last minute to halt its destruction.

What I saw as missing from the story was a richer comparative engagement with the full spectrum of constitutional contexts in which unamendable provisions were adopted, as well as a more critical account of their interpretation. Drawing on my interest in transitional and fragile contexts, I came to realise that eternity clauses in these contexts often played a different role. In some instances, unamendability cloaks the entrenchment of identitarian imposition, elite privilege, and majoritarian interests. For instance, Turkey’s unamendable constitutional protections of secularism, territorial integrity, and the official language have underpinned repeated Kurdish party bans in the name of a constitutional identity conflated with a single national identity. In post-authoritarian and post-conflict contexts from Tunisia to Fiji, unamendability has facilitated the constitutional settlement altogether. In other words, there would likely not be a constitution adopted without entrenching certain hard-fought negotiated guarantees such as unamendable term limits, multipartyism, or even amnesties and immunities. These are just some of the underexplored facets of eternity clauses on which the book sheds light. 

Whose work was influential on you throughout the project?

The scholars who have most influenced my own research over the years have been those taking an interdisciplinary, global but also contextual approach to constitutional questions. They are numerous, but I’ll give a few illustrations. Work by Tom Ginsburg and Rosalind Dixon is always fascinating and asks necessary tough questions without shying away from the complexity of the answers. For example, Chapter 2 of the book makes a political insurance-type argument about eternity clauses in post-conflict constitutions. Christine Bell’s and Vicki Jackson’s scholarship has also inspired me to think of the nexus between constitutional and international law. Chapter 5 of the book, on unamendability in a transnational context, in fact builds on their work to explore the key ways in which unamendability – both its content and its enforcement – plays out on the supranational level. Finally, I find Mara Malagodi’s work to be rigorously interdisciplinary, critical, and always insightful. It impressively straddles law, politics, sociology, and history, raising the bar for contextualism in comparative constitutional studies. Her scholarship on constitutional nationalism in Nepal inspired my own analysis of eternity clauses as sites of exclusionary majoritarianism (especially in Chapter 3 of the book).

What challenges did you face in writing the book?

Aiming for both a widely comparative scope of analysis and deep contextualism was definitely the biggest challenge in writing the book. Some might even view the two as fundamentally incompatible. But when it comes to a topic such as unamendability, which touches on the most fundamental values and principles of a constitutional order, I believe we cannot fully understand its operation without grasping the local conditions having led to its adoption and enforcement. Take my own country of Romania: most of its eternity clause seems innocuous enough. However, the definition of the state as “national” that it also enshrines cannot be divorced from the fraught, majoritarian constitution-making process having led to its adoption, or from lingering fears that pluralising the constitutional subject would constitute a threat to national identity – to which constitutional identity is subsumed (see more on this here). This isn’t solely a Romanian story though, as we see constitutional unamendability used to shield majoritarian state-building projects across the world. The book takes seriously these types of case studies, often ignored by mainstream scholarship, believing them no less worthy of attention. In that sense then, methodologically, the book is also an appeal for comparison beyond usual suspects. Balancing breadth with depth was certainly not always easy, especially if seeking to keep the writing concise too.

What do you hope to see as the book’s contribution to academic discourse and constitutional or public law more broadly?

The book is an attempt to re-centre the democratic critique of eternity clauses and unamendability more generally, to take it seriously on its own terms and with the benefit of the plenitude of case studies at our disposal. I argue that viewing unamendability as simply one extreme on the entrenchment continuum misses important aspects which make it unique – both uniquely appealing and, sometimes, uniquely dangerous. Unamendability’s appeal has been noted in scholarship already and include its efficient bluntness, its link to constitutional universals such as the rule of law judicial independence, or human rights, and the expectation that the structural nature of unconstitutional constitutional amendment doctrines could allow courts to address amendment packages that cumulatively undermine the constitutional democratic architecture. 

However, I show in the book that unamendability’s “dark side” needs to be taken just as seriously. This is because, first, eternity clauses do not always enshrine liberal constitutional ideals, but may (and often do) insulate exclusionary and majoritarian values and principles. Examples include the seemingly benign unamendable state characteristics such as a national language or religion being invoked to repress minority groups. Second, because eternity clauses are not always relied on as a measure of last resort, but also to stifle otherwise reasonable democratic change – in the name of a precommitment whose guardian the constitutional court purports to be. Consider the repression of democratic protests in Thailand in the name of protecting the monarchy, or courts in India and Colombia blocking attempts to reform judicial appointments structures because they eliminated judicial supremacy. And finally, because eternity clauses are very difficult, if not impossible, to reign in, push back against, amend out or reverse. Offering revolution as the only work-around to unamendability will often be too high a price to pay in constitutional contexts that are likely already fragile.

In addition to this warning to consider whether the risks associated with unamendability are worth it, I also discuss in the book recent developments that have taken unamendability in new directions once again. One is the embrace of forms of constitutional identity review by different European constitutional courts to set limits to European integration in the name of unamendable constitutional principles. Another is the rise of constitutional amendment review by supranational courts as a means by which to sanction abusive amendments in member states. Another still is the interplay between unamendability and participatory constitution-making, which is not straightforward.

What’s next?

Returning more seriously to the strand in my research dealing with participatory constitution-making is definitely in the works. Not that the book itself avoided it – in fact, Chapter 6 specifically asks whether the increased adoption of eternity clauses and unamendable constitutional amendment doctrines sits at ease with the parallel global trend of expecting ever more public participation in constitutional processes. In addition, my interest in gender and constitutionalism infuses all my research. A constitutional process such as Chile’s current one offers the chance to examine the effects of both mass involvement and a gender parity principle applied to the constitutional convention, so it is one I am following closely. Equally, I am keen to do more to understand the constitutional mechanisms involved in the democratic and gender equality backsliding in Central and Eastern Europe and what could be done to revert it (see e.g. our project on Feminist Judgments in Central and Eastern Europe).

Dr Silvia Suteu is an Associate Professor at UCL Faculty of Laws

Eternity Clauses in Democratic Constitutionalism is available for purchase at Oxford University Press. Order online at www.oup.com/academic with promotion code ALAUTHC4 to save 30%.