Eternity clause
Encyclopedia
The eternity clause is Article 79 paragraph (3) of "this Basic Law" for the Federal Republic of Germany (German Constitution
). This clause prohibits outright certain amendments to the German constitution. It was included in the original text of "this Basic Law," as enacted in 1949. The clause reads:
Article 1
(1) The dignity of man is inviolable. To respect and protect it is the duty of all state authority.
(2) The German people therefore acknowledge inviolable and inalienable human rights as the basis of every community, of peace and of justice in the world.
(3) The following basic rights bind the legislature, the executive and the judiciary as directly enforceable law.
Article 20
(1) The Federal Republic of Germany is a democratic and social Federal state.
(2) All state authority emanates from the people. It is exercised by the people by means of elections and voting and by separate legislative, executive and judicial organs.
(3) Legislation is subject to the constitutional order; the executive and the judiciary are bound by the law.
Article 20 also includes a fourth paragraph, which states that "All Germans shall have the right to resist any person seeking to abolish this constitutional order, should no other remedy be possible". However this provision is (according to the common opinion of lawyers) not protected by the eternity clause, because it was not included in the Basic Law as originally enacted, but was added to the constitution by an amendment in 1968. Most lawyers claim (though with basis in philosophy of law rather than in the Basic Law) that the amending legislator has no power to enlarge the eternity clause, but at any rate the words "article 20" as appearing in article 79 mean "article 20 as in force at the time article 79 was enacted", and the amending legislator did not in any way reveal an intention to put the right of resistance under eternity. (That is, not by force of the Basic Law itself. If it be argued that the right to resist an illegitimate government is of natural law
, then as such it would be included in the words of article 1 II as given above.)
Article 146
This Basic Law, which is valid for the entire German people following the achievement of the unity and freedom of Germany, shall only cease to be in force on the day on which a constitution that is adopted by a free decision of the German people comes into force.
; an entrenchment clause seeks to make it practically difficult to pass a certain type of amendment, but an eternity clause goes further, and it seeks to prohibit such "amendments" entirely. Thus, an eternity clause can seemingly only be overcome through extra-legal means such as a coup d'état. The Bundesverfassungsgericht (Germany's Constitutional Court) disregards it entirely -- interpreting it so weakly as to render it to be inactive in practice.
One means by which an eternity clause may be overcome is if a constitutional convention that writes a whole new constitution that, having been ratified by a free decision of the people (as Article 146 of Germany's constitution requires), replaces the old constitution. A similar event occurred in the United States when the older Articles of Confederation
was completely replaced by the newer U.S. Constitution
. This was done by the Philadelphia Convention of 1787, and the new constitution was eventually ratified by all thirteen of the original states.
Basic Law for the Federal Republic of Germany
The Basic Law for the Federal Republic of Germany is the constitution of Germany. It was formally approved on 8 May 1949, and, with the signature of the Allies of World War II on 12 May, came into effect on 23 May, as the constitution of those states of West Germany that were initially included...
). This clause prohibits outright certain amendments to the German constitution. It was included in the original text of "this Basic Law," as enacted in 1949. The clause reads:
Affected provisions
The eternity clause protects a number of provisions in this constitution, but the following are specifically mentioned by name:Article 1
(1) The dignity of man is inviolable. To respect and protect it is the duty of all state authority.
(2) The German people therefore acknowledge inviolable and inalienable human rights as the basis of every community, of peace and of justice in the world.
(3) The following basic rights bind the legislature, the executive and the judiciary as directly enforceable law.
Article 20
(1) The Federal Republic of Germany is a democratic and social Federal state.
(2) All state authority emanates from the people. It is exercised by the people by means of elections and voting and by separate legislative, executive and judicial organs.
(3) Legislation is subject to the constitutional order; the executive and the judiciary are bound by the law.
Article 20 also includes a fourth paragraph, which states that "All Germans shall have the right to resist any person seeking to abolish this constitutional order, should no other remedy be possible". However this provision is (according to the common opinion of lawyers) not protected by the eternity clause, because it was not included in the Basic Law as originally enacted, but was added to the constitution by an amendment in 1968. Most lawyers claim (though with basis in philosophy of law rather than in the Basic Law) that the amending legislator has no power to enlarge the eternity clause, but at any rate the words "article 20" as appearing in article 79 mean "article 20 as in force at the time article 79 was enacted", and the amending legislator did not in any way reveal an intention to put the right of resistance under eternity. (That is, not by force of the Basic Law itself. If it be argued that the right to resist an illegitimate government is of natural law
Natural law
Natural law, or the law of nature , is any system of law which is purportedly determined by nature, and thus universal. Classically, natural law refers to the use of reason to analyze human nature and deduce binding rules of moral behavior. Natural law is contrasted with the positive law Natural...
, then as such it would be included in the words of article 1 II as given above.)
Article 146
This Basic Law, which is valid for the entire German people following the achievement of the unity and freedom of Germany, shall only cease to be in force on the day on which a constitution that is adopted by a free decision of the German people comes into force.
Democratic principles
The Eternity Clause is intended by the German people to protect (secure) the "basic principles" of democracy. Democracy is not only about "elections and voting," but also about "human rights" ("basic rights") which are "directly enforceable law" and to be exercised by "separate legislative, executive and judicial organs," i.e., "human rights" are the Rule of Law. According to Articles 1, 20 and the eternity clause, the "human rights" are the essence of Germany. For "public authorities," including the Bundesverfassungsgericht, to violate the eternity clause and its requirement to protect the "basic principles" of Articles 1 and 20 is to willfully violate the absolute authority (Sovereignty) and acknowledgements of the German people -- "public authorities" violating their obligations ("duty") to respect and follow the Rule of Law.Other constitutions
By extension, the term "eternity clause" can also refer to provisions in other constitutions which similarly seek to prohibit certain types of amendments, particularly "amendments" attempting to eliminate constitutional protections. It can be considered an extreme type of an entrenchment clauseEntrenchment clause
An entrenched clause or entrenchment clause of a constitution is a provision which makes certain amendments either more difficult than others or impossible...
; an entrenchment clause seeks to make it practically difficult to pass a certain type of amendment, but an eternity clause goes further, and it seeks to prohibit such "amendments" entirely. Thus, an eternity clause can seemingly only be overcome through extra-legal means such as a coup d'état. The Bundesverfassungsgericht (Germany's Constitutional Court) disregards it entirely -- interpreting it so weakly as to render it to be inactive in practice.
One means by which an eternity clause may be overcome is if a constitutional convention that writes a whole new constitution that, having been ratified by a free decision of the people (as Article 146 of Germany's constitution requires), replaces the old constitution. A similar event occurred in the United States when the older Articles of Confederation
Articles of Confederation
The Articles of Confederation, formally the Articles of Confederation and Perpetual Union, was an agreement among the 13 founding states that legally established the United States of America as a confederation of sovereign states and served as its first constitution...
was completely replaced by the newer U.S. Constitution
United States Constitution
The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...
. This was done by the Philadelphia Convention of 1787, and the new constitution was eventually ratified by all thirteen of the original states.