Do constitutional entrenchment clauses matter? Constitutional review of constitutional amendments in Europe

Abstract

Abstract Do constitutional entrenchment clauses matter? And if yes, how? This article examines these questions by analyzing a comprehensive collection of 154 decisions issued by European constitutional and supreme courts from 1945 up to 2016, on the constitutionality of constitutional amendments. The article shows that entrenchment clauses do matter: in the vast majority of decisions studied, the claimants and/or the courts referred to a constitutional entrenchment clause. About one-fourth of these cases resulted in the invalidation of a constitutional amendment, most of which were based on an “eternity clause,” that is, the most extreme type of entrenchment clauses. However, the article also demonstrates that most of these invalidations can be assessed as instances of democracy-adverse judicial activism. The article concludes, therefore, that entrenchment clauses cannot be considered an unambiguous instrument for the protection of democratic constitutionalism.

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