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44 Isr. L. Rev. 429 (2011)
The Implications of Eternity Clauses: The German Experience

handle is hein.journals/israel44 and id is 429 raw text is: THE IMPLICATIONS OF ETERNITY CLAUSES: THE GERMAN EXPERIENCE Ulrich K. Preuss* This paper explores the conceptual possibility and implications of the concept of uncon- stitutional constitutional amendments. In the first section, the author argues that uncon- stitutional 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 endan- ger 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 immu- table elements of the constitution beyond the limits of the amending power. The para- digmatic case is the German Basic Law and a recent decision by the Federal Constitutional Court that discusses the implications of the eternity clause with refer- ence to the distinction between constituent power and the constituted amending power. The author develops an alternative understanding of that distinction and its conse- quences for the amending power. The possible adverse effects of eternity clauses on the normality of the constitution are briefly considered in the final section. INTRODUCTION It is usually understood that a written constitution essentially consists of rules concerning the machinery of government, a bill of rights, and stipulations on the amendment of the constitution. As a matter of fact, the history of constitutionalism provides several examples of constitutions that lacked a bill of rights. These include the U.S. Constitution during the brief period between September 13, 1788 and December 15, 1791 and the Constitution of the German Empire of 1871 (valid until the Empire's collapse in November 1918). Thus, it is a matter of argument whether a bill of rights is an indispensable part of a constitution. By contrast, amendment rules, while at first glance appearing to be merely technical in character, are in fact essential and indispensable. The constitution is an institutional device that constitutes a polity in which all categories of political power are authorized by the supreme law of the land-nulla potestas extra constitutionem (there is no authority beyond the constitution). In a constitutional polity, all powers are constituted powers * Professor Emeritus of Law and Politics, Free University of Berlin and Hertie School of Governance, Berlin. 429

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