Constitutional Entrenchment Clauses as Measures of Militant Democracy. A Study on Constitutional Review in Europe (1945–2016)

Most modern constitutions are entrenched, i.e. harder to amend than ordinary laws. In addition, many constitutions contain so-called “entrenchment clauses”. These are provisions that further raise the hurdles for amending certain parts of a constitution, or even declare selected provisions unamendable. The vast majority of such clauses aim to protect essentials of modern constitutionalism, such as democracy, human rights,or the rule of law. They thus aim to prevent the abolition of democracy by democratic means, and can therefore be understood as measures of militant democracy. As one result of the global ‘wave’ of populism, constitutional politics emerged as one of the main “battlefields” of anti-liberal and authoritarian movements. For instance, Victor Orbán’s government in Hungary has frequently used constitutional amendments and even the adoption of a new constitution to enforce and safeguard its political goals. Against this background, the proposed paper examines whether constitutional entrenchment clauses are a proper and effective measure of militant democracy. So far, we know very little about the empirical effects of such clauses. Do they substantially constrain constitutional amendment processes? And if so, do they function as intended by the constitution framers? I will answer these questions by analyzing the case law of the Supreme and Constitutional Courts of all European countries from 1945 until 2016 (114 decisions). In 28 cases, courts invalidated amendments with reference to an entrenchment clause, mostly in Central and Eastern Europe (including Turkey) after 1990. As I will show, only about one third of these court rulings can be assessed as functional interventions, insofar as they helped to protect certain essentials of modern constitutionalism against encroachments. The majority of judgments, however, resulted in illegitimate restrictions to democratic self-rule. Consequently, I will argue that constitutional entrenchment clauses are not a proper and effective measure of militant democracy.