The Implications of “Eternity Clauses”: The German Experience

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This paper explores the conceptual possibility and implications of the concept of unconstitutional constitutional amendments. In the first section, the author argues that unconstitutional constitutional norms are conceptually impossible within the conventional hierarchical model of norms. In the second section, the author discusses the normative particularity of the amending power and concludes that an unlimited power may endanger the constitution. In sections III and IV, the author explains why so-called “eternity clauses,” in order to fend off such a danger, have been designed to place certain immutable elements of the constitution beyond the limits of the amending power. The paradigmatic case is the German Basic Law and a recent decision by the Federal Constitutional Court that discusses the implications of the “eternity clause” with reference to the distinction between constituent power and the constituted amending power. The author develops an alternative understanding of that distinction and its consequences for the amending power. The possible adverse effects of “eternity clauses” on the normality of the constitution are briefly considered in the final section.