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25 - Constitutional Entrenchment

from Part II - Modalities

Published online by Cambridge University Press:  27 March 2025

By
N. W. Barber
Edited by
Richard Bellamy  and
Jeff King
Richard Bellamy
Affiliation:
University College London
Jeff King
Affiliation:
University College London
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Summary

Entrenchment is a constitutional tool that renders legal change more difficult. This chapter examines the forms entrenchment can take, and the reasons for and against entrenchment. It argues that entrenchment can, on occasion, help resolve constitutional problems by requiring law-making institutions to depart from the normal way in which they effect legal change. Entrenchment rules are at their most attractive where there is a connection between the reason for entrenchment – the reason why the normal rules of legal change are problematic in a particular area of law – the type of entrenchment rule adopted, and the area of law entrenched.

Keywords

entrenchmentlegislative amendmentconstitutional amendmentcourtslegislaturesstatutory drafting
Type
Chapter
Information
The Cambridge Handbook of Constitutional Theory , pp. 417 - 432
Publisher: Cambridge University Press
Print publication year: 2025

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References

Recommended Reading

Albert, R. (2010). Constitutional Handcuffs. Arizona State Law Review, 42 (3), 664–716.Google Scholar
Albert, R. (2014). The Structure of Constitutional Amendment Rules. Wake Forest L. R., 49, 913.Google Scholar
Elster, J. (2002). Ulysses Unbound, Cambridge: Cambridge University Press.Google Scholar
Eule, J. N. (1987). Temporal Limits on the Legislative Mandate: Entrenchment and Retroactivity. Law and Social Enquiry, 12 (2–3), 381–459.Google Scholar
Levinson, D. J. (2011). Parchment and Politics: The Positive Puzzle of Constitutional Commitment. Harvard Law Review, 124 (3), 657–746.Google Scholar
Marshall, G. (1987). Constitutional Conventions, Oxford: Oxford University Press.CrossRefGoogle Scholar
Posner, E. & Vermeule, A. (2002). Legislative Entrenchment: A Reappraisal. Yale Law Journal, 111 (7), 1165–1706.CrossRefGoogle Scholar
Schwartzberg, M. (2014). Counting the Many: The Origins and Limits of the Supermajority Rule, Cambridge: Cambridge University Press.Google Scholar

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