Many constitutions purport to make some provisions immune from ordinary amendment processes. The Constitution of Turkey, for example, states that the character of the country as a secular democracy and republic cannot be changed, and forbids any proposal to amend these provisions. Thailand’s constitution entrenches the monarch as head of state. Other countries purport to prohibit amendments with regard to such features as term limits, official languages and religions, flags and anthems, and the boundaries of sub-national units.
As Javier Couso’s excellent post last week pointed out, Honduras and Chile have some constitutional similarities in this regard that bear further examination. Both countries have entrenched rules in the constitution, including certain unamendable provisions. Both go further in that, like the Turkish example above, they seek to prevent even a proposal to amend the constitution. As we found out in late June when President Zelaya was expelled from his country, the Honduran Constitution provides that any leader who proposes the abolition or amendment of term limits is subject to immediate removal from office. In the Chilean case, the executive or legislative branches are prohibited from calling for a referendum asking the public whether it wants a new constitution. Both of these rules seem designed to squelch constitutional debate. To the extent that fidelity to the constitution has an independent value, these provisions may hinder current citizens from effectuating welfare-enhancing changes that are favored by overwhelming majorities. The rules may thus indirectly encourage overturning the whole constitutional order, as Javier suggested.
I would tentatively suggest that we might begin by distinguishing the substantive provisions being entrenched from second-order proscriptions on debate or proposal of amendments. The latter seem to be of more serious concern, as they freeze the deliberative process that the constitution may be designed to encourage. Indeed, the prohibition on debate may conflict with other parts of the constitution that are of equivalent normative authority, in particular a right to free speech.
On the other hand, a substantive prohibition on amendment may perhaps be best effectuated by nipping proposals in the bud. And some issues such as the religious or republican character of the state may indeed be best handled by removing them completely from ordinary or constitutional politics. But others, in particular the issue of term limits, do not seem so contentious as to prohibit all discussion of them. Term limits, after all, restrict democratic choice. Perhaps the only conclusion then, is that constitution-makers should tread cautiously when purporting to make some provisions unamendable: different issues seem differentially suited to this approach, and second-order prohibitions on debate risk the unintended consequence of premature constitutional death.