Evolution vs Revolution
A Theory of Constitutional Savings Clauses
We are all aware of the polarization afflicting modern democratic societies. It has intensified to the point that each camp perceives the “other” as a threat to its values and way of life. This is perhaps most striking in the US, as an old democracy that supposedly had enough time to establish a cohesive identity. I argue that the current conflicts democratic societies face are often rooted in constitutional clauses that preserve problematic past laws predating the adoption of the constitution. The preservation of these laws has sentenced countries to a long battle to reconcile between their democratic and liberal values and the ghosts of a more anachronistic past.
We take it for granted that constitutions override preexisting legislation according to the general maxim that newer laws supersede earlier laws unless the earlier law is specific in nature. In fact, even ordinary legislation can override older legislation without being buoyed by constitutional supremacy. We believe that the unique, supreme power of a constitution is necessary to invalidate future legislation which may threaten to undermine the constitution. Yet, some constitutions treat the past differently, by adopting a savings clause, which prevents judicial review from nullifying laws that predate the constitution.
Scholars commonly believe that this is a fairly anomalous, even esoteric, phenomenon that occurs mostly in African and Caribbean countries. Contrary to this popular belief, my research reveals that approximately 40% of the world’s constitutions utilize savings clauses. While many believe that the adoption of a constitution is a revolutionary exercise, intended to transform the past, the prevalence of savings clauses suggest that constitutional adoption is a more evolutionary story than conventionally told.
Scholars tend to believe that the driving force behind the adoption of savings clauses is a desire to preserve legislation that courts would otherwise deem unconstitutional. However, this is only one of the rationales for adopting savings clauses. In fact, I identify three types of savings clauses, arising from different rationales. These types are not mutually exclusive. Countries can tack different types of savings clauses onto different constitutional provisions. Furthermore, while scholars believe that the primary purpose of savings clauses is to shield pre-existing laws from judicial review, savings clauses were, in fact, also intended to influence constitutional interpretation. Indeed, savings clauses shape all aspects of the constitutional discourse between the political actors.
Category 1: Mechanism for Commemorating and Preserving the Past
In the first scenario, the constitutional framers choose to adopt savings clauses because they are proud of their nation or state’s history. The constitution, by design, intends to obligate all political actors to preserve the past. Many times, such constitutions declare that their purpose is to codify pre-existing rights that members of society have enjoyed even prior to the adoption of the constitution. Often times, their claim that these rights preceded the constitution does not actually reflect the pre-constitution political reality in the state.
In this scenario, the constitution does not determine the interpretation of pre-existing laws. Rather, the opposite. The framers utilize this type of savings clauses to ensure that pre-existing laws dictate constitutional interpretation. For instance, this type of savings clause gave rise to the American originalist constitutional philosophy, which calls for interpreting the US constitution based on how its provisions were commonly understood at the time of its adoption. It has also influenced the emergence of the “frozen concepts” interpretive approach in the 1960s in Canada, which took seriously the declaration in the Canadian Bill of Rights that it was intended to codify pre-existing rights. The users of such interpretive methods assert that they seek to adhere as much as possible to the framers’ desire to conserve the past.
Category 2: Mechanism for Ensuring the Legal System’s Stability
The second category of savings clauses is designed primarily to ensure stability. In this case, the framers had yet to determine their approach to pre-existing legislation. They are still uncertain whether they are satisfied with the pre-existing laws or wish to weave a new legal fabric for the new nation. At the time of the state’s establishment, with the time pressure and limited resources at hand, sometimes the framers adopt a savings clause as a temporary compromise. This type of savings clauses preserves the legal status quo in order to prevent a legal vacuum from forming which would lead to chaos and instability. This enables the founders to postpone the deliberation on the merits of these pre-existing laws to a later date, so they can give this weighty matter the attention it deserves. For this reason, many countries intentionally design such savings clauses as a temporary mechanism to begin with: a sunset savings clause.
This type of savings clause is characteristic of countries that were under British rule until declaring their independence following World War II, including countries in Africa and the Caribbean. Many of these countries regarded British law as an appropriate basis for their own legal system, because it granted religious communities autonomy, thus preventing the suppression of religious groups which would have undermined the new regime’s stability. During the Cold War, preserving the British law also served as a “signaling mechanism” to indicate that these fledgling nations intend to align with the West, rather than the Soviet East. This reassured the Western countries currently investing in the new states’ economies that these new states intended to preserve the existing property rights and would not threaten their economic interests. In this respect, the savings clause served an additional purpose as a mechanism to encourage foreign investments. This motivation also explains why Britain encouraged the adoption of constitutions in countries formerly ruled by it, while rejecting such explicit constitutional endeavor at home.
When this is the motivation for adopting savings clauses, liberal courts around the world prefer to interpret the clause narrowly, so as to minimize the potential infringement upon human rights which would be caused by preserving the pre-existing laws. Such infringement upon human rights is perceived as unforeseen by the framers, because they did not form a principled stance on whether the pre-existing laws are desirable. This narrow judicial interpretation of the effect of savings clauses, combined with a broader interpretation of the rest of the constitution, enables these liberal countries to develop a more coherent constitutional identity, in which the liberal and democratic character of the state takes precedence over its arcane pre-existing laws saved by the constitution.
Category 3: The Compromise Mechanism
Sometimes, savings clauses function as a compromise mechanism. In these cases, the clause is necessary specifically because framers are aware of the problematic, illiberal, and even discriminatory, nature of the pre-existing laws. These laws preserve some of the countries’ most problematic practices, including capital punishment, slavery, and discrimination on the basis of religion or gender. They are necessary to assure those opposed to the adoption of the constitution that the legal status quo would not be completely upended. For instance, according to my analysis, art. 1 section 9 in the US Constitution which preserved slavery until 1808 belongs in this category of savings clauses. This savings clause is not phrased in a typical manner. It does not mention the courts. It only protects slavery from interference by the federal legislators. This is because, at the time, some federal legislators were more opposed to slavery than the courts, and thus constituted a much greater threat to its continued existence.
Savings clauses ensure that the governing institutions are focused on the future, while setting aside and even suppressing the need to deal with past challenges. In this way, the framers also impress the international community. They can present the constitution as liberal on its face in how it addresses the nation’s future, while pre-existing, discriminating, laws are preserved at the sub-constitutional level through a savings clause. Foreigners, who are unfamiliar with the intricate inner workings of this regime’s legal system, would not be aware of these problematic clauses and their effects. One must master the law of the particular country in order to understand its arcane, undemocratic, and illiberal nature. Thus, a facade of liberalism and democracy is achieved.
These savings clauses result in legal systems with a questionable legal character inherently replete with contradictions. Their pre-existing laws are illiberal and discriminatory, but are insulated from judicial review, while their new laws, passed after the adoption of the constitution, must respect constitutional rights. In these scenarios, liberal courts also attempt to interpret the savings clauses narrowly as a form of damage control. However, such narrow interpretation might not conform with the framers’ intentions.
The Forthcoming Revolution
Savings clauses often delay, rather than resolve, conflicts. They sow the seeds for a forthcoming constitutional revolution, in which the state attempts to resolve the inherent conflict in its identity once and for all. Savings clauses did not prevent the US Civil War, which cost the lives of 2% of the American population at the time. To this day, slavery and racial discrimination remain divisive topics in the US. In Canada too, the savings clauses forced Canada to start a new chapter, by adopting the Charter of Rights and Freedoms in 1982, so that Canadians would not be limited only to the rights regime they have enjoyed prior to the adoption of the Canadian Bill of Rights in the 1960s. In India, savings clauses contributed to the conflict between the elected branches and the judiciary over the status of property rights and redistribution of property—a conflict which reached its zenith with the formation of a state of emergency regime in the 1970s and the development of the Indian “unconstitutional constitutional amendment” doctrine. While savings clauses are largely ignored in the literature, their presence may explain why countries are internally struggling between liberal progress and conservative backsliding. Countries’ constitutions may have guaranteed that this identity struggle would be ongoing.
This research was supported by the Israel Science Foundation (grant no. 3080/21).
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