Entrenchment Discussion

[Claude Desmoulins]

Although nothing has been passed by the RA as yet, it might be useful to launch a discussion of the details of entrenchment. I'm proceeding from the assumption that there will be two total levels of entrenchment. What should be "protected", and what should be easier to change? Post away.

[Beathan]

Honestly, I have no idea what "entrenchment" means and I have not been able to find a good working definition in anything I have read. Presumably it serves a function similar to that served by the word "fundamental" in U.S. Constitutional civil liberty caselaw, but I'm not sure that I am getting it right.

I have seen the term used in Constitutional discussions. To me, we have to first decide what find of Constitution we have. Do we have a weak Constitution, which amounts to nothing more than a statement of governmental organizational principles and which therefore can be conceived merely as a paticular kind of statute? Alternatively, do we have a strong Constitution, which does not merely organize the state, but also serves as a statement of governing and guiding principles?

In my opinion, we shoudl choose one or the other and stick to it. Trying to have a single document do both -- identifying some terms as entrenched and others as unentrenched -- is asking for problems. It unnecessarily complicates the document and the use of the document. It also sets forth what will necessarily be a complicated and opaque interpretation of the document which will take on the force of a second, strong constitution.

To me, law and government organization and function must be such that most people can see and understand them. Asking a document to do double duty, even if we pay it extra, undermines this transparent simplicity.

Beathan

[Diderot Mirabeau]

[quote="Claude Desmoulins":1cqgksv4]from the assumption that there will be two total levels of entrenchment. What should be "protected", and what should be easier to change? [/quote:1cqgksv4]

My first impulse is that only the reference to the founding documents need be entrenched / fundamental - but possibly it would be worthwhile to consider also entrenching the part that details how the RA is elected by popular vote?

[Ashcroft Burnham]

[quote="Beathan":3lp41unt]Honestly, I have no idea what "entrenchment" means and I have not been able to find a good working definition in anything I have read. Presumably it serves a function similar to that served by the word "fundamental" in U.S. Constitutional civil liberty caselaw, but I'm not sure that I am getting it right.[/quote:3lp41unt]

I do not know what the concept of "fundamental" is in the US constitution, but entrenchment is the process whereby a piece of legislation, including all or part of a written constitution, is made such that the requirements for changing it are especially onerous (such as that it cannot be changed without a referendum in support of the particular amendment proopsed), to act as a check on the power of the legislature to stop, for example, the legislature passing a law that extends its term of office indefinitely.

[quote:3lp41unt]I have seen the term used in Constitutional discussions. To me, we have to first decide what find of Constitution we have. Do we have a weak Constitution, which amounts to nothing more than a statement of governmental organizational principles and which therefore can be conceived merely as a paticular kind of statute? Alternatively, do we have a strong Constitution, which does not merely organize the state, but also serves as a statement of governing and guiding principles?[/quote:3lp41unt]

Our constitution as it stands is already entrenched, in that it requires a 2/3rds majority in the Representative Assembly to amend it, and it takes precedence over all other legislation (it is higher than other legislation on the heirachy of legal sources for the judiciary, and the Sceintific Council can veto legislation on the basis that it is inconsistent with the constitution, as it has done in the past). Our constitution is therefore more than a set of approximate guiding principles.

The discussion about whether we should "entrench" our constitution is perhaps a little misleading, since it is already entrenched. However, it is not entrenched very far: requiring one more vote in the legislature to change the constitution than to pass an ordinary bill is not much in the way of entrenchment. The discussion, therefore, is really about whether to have [i:3lp41unt]more[/i:3lp41unt] entrenchment, at least in relation to some parts.

[quote:3lp41unt]In my opinion, we shoudl choose one or the other and stick to it. Trying to have a single document do both -- identifying some terms as entrenched and others as unentrenched -- is asking for problems. It unnecessarily complicates the document and the use of the document. It also sets forth what will necessarily be a complicated and opaque interpretation of the document which will take on the force of a second, strong constitution.

To me, law and government organization and function must be such that most people can see and understand them. Asking a document to do double duty, even if we pay it extra, undermines this transparent simplicity.[/quote:3lp41unt]

Ahh, not the way that I had proposed: no interpretation would be required. All those parts of the constitution surrounded by a symbol would require a referendum to change, and those not surrounded by a symbol would not. It would be a very simple system to interpret, understand and impliment. The only difficult part would be deciding which parts to give the extra entrenchment. Difficult, however, does not mean unfeasable or not worthwhile.