Friends or Foes? The Uncertain Relationship of Eternity Clauses and Populism
Silvia Suteu (Public Law at the University College London) participated in the international conference “Constitutionalism in the Age of Populism”, March 6-8, 2020. She gave a paper with the title: “Friends or Foes? The Uncertain Relationship of Eternity Clauses and Populism”.
In her paper, Suteu notes that eternity clauses are seen by many as the ‘lock on the door’ that can keep enemies of constitutional democracy out, at least for a time. They are adopted so as to help prevent constitutional change that goes against fundamental principles of constitutionalism and to preserve the polity’s core constitutional identity. At the very least, unamnedability is thought to raise the price of abusive constitutional reforms by rendering them clearly visible and attaching to them a stigma of unconstitutionality. Unsurprisingly then, eternity clauses have also been invoked as a potential bulwark against populists in power. Unamendable provisions may not have entirely thwarted populist takeovers, the argument goes, but may have delayed them, bought some time for defenders of constitutional democracy to resist, and clearly signalled to the outside world (including supranational institutions such as the European Union) that something was amiss. Scholars in Hungary and Poland, for example, have raised such arguments, the former especially decrying the ease with which the country’s constitutional order has been subverted.
Suteu’s paper questioned such easy assumptions about the nature and operation of eternity clauses, both in general and in a populist context. The paper argues, based on concrete examples, that unamendability is a tool populists have been just as comfortable wielding as their opponents. For example, the darkside of constitutional identity review includes captured courts defending of many populist reforms would have made them difficult to capture under the often-broad strokes of unamendable principles. Finally, unamendability is a broad church and experience shows that populists in power also resort to constitutional rigidity mechanisms once they have captured state institutions. In other words, eternity clauses may quickly turn into instruments of entrenching the very populist projects proponents of unamendability abhor.
Suteu also participated in the video series on Populism and Democracy and accepted EUCANet’s invitation to respond to a bold question: “What are the greatest challenges that populism poses to democracy?”.
In this video interview, Silvia Suteu connects the pernicious rise of populism in the region of Central and Eastern Europe to the fact that populists have managed to tap into a real dissatisfaction and disaffection with democracy, and specifically with representative institutions. This is exemplified by the constitution making processes in the region in 1989 and immediately thereafter, which resulted in an elite driven path towards a very legalistic form and institutionalization of liberal democracy, combined with a free, neo-liberal form of capitalism. According to Suteu, what is happening in the region today is in part a push back against the institutionalization of this legalistic constitutionalism and neo-liberal economic forms, taken without deliberation or compromise.
Populists often ask the right questions but provide dangerous answers – notes Suteu – and this is why populism in that region is so difficult to address. The scholar also stresses that the European Union (EU) seems to have been caught off guard by populism as it is still trying to figure out how to respond and how to strengthen protections for the rule of law while connecting those protections to real actions. In this respect – she adds – still missing on the part of European Union actors is a “soul searching” about how to truly democratize the EU and how to address its own democratic deficits.
Silvia Suteu is Lecturer in Public Law at the University College London. She was previously a tutor and ESRC Research Fellow at the University of Edinburgh, where she also co-founded and convened the Constitutional Law Discussion Group and acted as Associate Director for Research Engagement of the Edinburgh Centre for Constitutional Law. Her current research interests are in comparative constitutional law and constitutional theory. She is especially interested in the theory and practice of deliberative constitutional change, constitutional entrenchment and democratic theory (in particular eternity clauses), transitional constitutionalism, and gender-sensitive constitution-making. She has also done work in international humanitarian and human rights law. She obtained her PhD in Law from the University of Edinburgh, titled “Eternity and the Constitution: The Promise and Limits of Eternity Clauses” and she will present on this topic at the conference.