Unamendability and Exclusion: Eternity Clauses as a Tool for Majoritarian Constitutional Projects

The scholarship on unamendability generally understands eternity clauses as in essence tied to liberal constitutionalism. Such provisions are typically seen, and to a large extent defended, as tools to entrench commitments to democracy, the rule of law and fundamental rights. Challenging this underlying assumption, this paper claims that even in otherwise liberal constitution-making contexts, eternity clauses can and have been used as tools for entrenching majoritarian values. Taking Romania’s unamendable provision as its starting point, the paper shows how an absolute entrenchment of an official language and of the state as ‘unitary’, ‘national’ and ‘indivisible’ embedded a nationalist constitutional project at the heart of an otherwise liberal-democratic constitution. The Romanian example is not alone and illustrates how eternity clauses can serve to silence reasonable disagreement over fundamental values and to reject rather than pacify competing visions of constitutional identity.