Entrenched clause: Difference between revisions
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They are usually justified as protecting the rights of a minority from the dangers of [[majoritarianism]], but they are often challenged by their opponents as being particularly undemocratic. |
They are usually justified as protecting the rights of a minority from the dangers of [[majoritarianism]], but they are often challenged by their opponents as being particularly undemocratic. |
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As examples of [[Constitutional amendment#Inadmissible amendments|inadmissable constitutional amendments]], [[Article Five of the United States Constitution]] |
As examples of [[Constitutional amendment#Inadmissible amendments|inadmissable constitutional amendments]], [[Article Five of the United States Constitution]] contained two entrenchment clauses. One clause prohibited any constitutional amendment regarding the international slave trade. This clause expired in 1808. The other clause, still in effect, states that "no State, without its Consent, shall be deprived of its equal suffrage in the Senate". This has been interpreted to require unanimous ratification of any amendment altering the composition of the [[United States Senate]].{{fact}} The unratified [[Corwin amendment]] would have amounted to another entrenchment clause, protecting [[states' rights]] to continue [[slavery]]. |
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There are several examples of entrenchment clauses which ultimately failed in their objectives, since their protections were undermined in unintended ways. |
There are several examples of entrenchment clauses which ultimately failed in their objectives, since their protections were undermined in unintended ways. |
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Revision as of 08:36, 8 July 2006
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An entrenchment clause of a constitution is a provision which makes certain amendments either more difficult than others or impossible. It may require some form of supermajority, a referendum or the consent of some other party if it is allowed at all.
An entrenchment clause whose intent is to prevent subsequent amendments, will, once it is adopted, and provided that it is correctly drafted, make some portion of a constitution irrevocable except through the assertion of the right of revolution.
They are usually justified as protecting the rights of a minority from the dangers of majoritarianism, but they are often challenged by their opponents as being particularly undemocratic.
As examples of inadmissable constitutional amendments, Article Five of the United States Constitution contained two entrenchment clauses. One clause prohibited any constitutional amendment regarding the international slave trade. This clause expired in 1808. The other clause, still in effect, states that "no State, without its Consent, shall be deprived of its equal suffrage in the Senate". This has been interpreted to require unanimous ratification of any amendment altering the composition of the United States Senate.[citation needed] The unratified Corwin amendment would have amounted to another entrenchment clause, protecting states' rights to continue slavery.
There are several examples of entrenchment clauses which ultimately failed in their objectives, since their protections were undermined in unintended ways.
- The Irish Free State Constitution was required in parts to be consistent with the 1922 Anglo-Irish Treaty, including an oath of allegiance and a representative of the Crown. The checks to protect this were removed by, for example, the Irish taking control of advice to the Governor-General, and when the Senate proved obstructive its abolition.
- The initial constitution of the Union of South Africa had entrenchment clauses protecting voting rights, including those of some Coloureds. They lost their votes after the Government packed the Senate and Supreme Court with its sympathisers.