Bills of Rights with Strings Attached – Protecting Death Penalty, Slavery, Discriminatory Religious Practice and the Past from Judicial Review

Some constitutions use savings clauses to shield from judicial review laws that have been in force prior to their adoption, thus, fostering a unique constitutional dialogue. Countries have used such provisions to shield discriminatory religious and gender practices, the death penalty, and even slavery. This puzzling phenomenon should have spurred discussion, yet there is no literature offering a comprehensive theoretical and comparative framework. When the rationale for adopting a savings clause is that existing law is good, this might lead to originalism. In contrast, when savings clauses are adopted to stabilize the system or shield discriminatory practices, courts may try to read them narrowly. Savings clauses suggest that constitutional development is more evolutionary than typically suggested. But these clauses might postpone rather than resolve conflict. At times, no less than a revolution is needed to restart the constitutional system free of the burden of savings clauses.