The Arizona State Law Journal will soon publish an article by Richard Albert. Professor Albert is an Assistant Professor at Boston College Law School and received his J.D. from Yale University, his LL.M. from Harvard University, and also has a B.C.L. from Oxford University. Professor Albert’s article discusses the problem of constitutional entrenchment and the illegitimacy it can bring, and offers a unique solution, what he calls the “entrenchment simulator,” which brings many of the benefits and few of the drawbacks of permanent constitutional entrenchment.
Professor Albert begins with a discussion of constitutional entrenchment and defines a sliding scale in which he delineates five levels of entrenchment. At the beginning of Professor Albert’s scale is legislative non-entrenchment, which would be akin to the amendment requirements of an ordinary law requiring nothing more than passage by the bicameral legislature in the United States’ constitutional system. Second on the scale is legislative entrenchment, a legislative law which has higher standards for amendment than the traditional bicameral passage of a new law amending the legislation, perhaps due to its perceived importance. Third on Professor Albert’s scale would be conventional constitutional entrenchment, the requirement of a supermajority of the bicameral legislature and the majority of subnational legislatures. Above this level, and fourth on the scale, would be a “superconstitutional provision” which requires additional conditions for amendment, which Professor Albert refers to as “heightened constitutional entrenchment.” This is generally used where certain provisions are deemed especially important. Finally, fifth on Professor Albert’s scale, is permanence, which Professor Albert calls “indefinite constitutional entrenchment” and refers to in his article simply as “entrenchment.”
Three forms of entrenchment are defined in Professor Albert’s article, beginning with preservative entrenchment, which intends to freeze a historical concept of the state. Next is transformational entrenchment, which aims towards the future rather than the past or present. This type of entrenchment aims to set the state in a new direction and cement a new vision of the state. Finally, third, is reconciliatory entrenchment, used to achieve peace amongst different groups who were once at war or otherwise in high tension. Most commonly, a constitutional clause using reconciliatory entrenchment grants blanket amnesty or immunity for the past and may assist in bringing peace. Professor Albert discusses in detail many examples of each type of constitutional entrenchment, with examples from many governmental constitutions.
Amongst the problems delineated by Professor Albert with entrenchment is that these provisions put handcuffs on future generations and throw away the key, removing any hope of ever amending these provisions through normal means. Where democratic governments derive their legitimacy from the notion that the government embraces the will of the majority, this type of constitutional provision may bring a feeling of illegitimacy because the provision is frozen indefinitely and is unable to be changed by any means.
Professor Albert proposes an “entrenchment simulator” which aims to capture the benefits of entrenchment while avoiding illegitimacy. Discussed are many of the benefits to constitutionalism and how these benefits are maintained. The entrenchment simulator involves three aspects. First is interim induction, which may involve a period of time in which the constitutional provision cannot be changed even with unanimous voting, which can help guide societal views in the aimed direction. Second is constitutional rank, which attaches additional procedural requirements to overturn certain constitutional provisions, attaching importance to some provisions over others. Third is sequential approval, which may require multiple votes with specified periods in between before the next vote may be taken, to add additional difficulty.
Discussed in detail by Professor Albert is how, through these means, constitutional entrenchment can retain its benefits, while retaining an escape hatch to avoid the harms. The article concludes with a recap and summary of how the solution functions and why it is superior to permanent entrenchment.