Entrenched clause
An entrenched clause of a constitution is a provision which makes certain amendments either more difficult than others or impossible. It may require some form of supermajority, a referendum or the consent of some other party.
They are usually justified as protecting the rights of a minority from the dangers of majoritarianism, but they are often challenged by their opponents as being particularly undemocratic.
There are several examples of entrenched clauses which ultimately failed in their objectives, since their protections were undermined in unintended ways.
- The Irish Free State Constitution was required in parts to be consistent with the 1922 Anglo-Irish Treaty, including an oath of allegiance and a representative of the Crown. The checks to protect this were removed by, for example, the Irish taking control of advice to the Governor-General, and when the Senate proved obstructive its abolition.
- The initial constitution of the Union of South Africa had entrenched clauses protecting voting rights, including those of Coloureds. They lost their votes rights after the Government packed the Senate and Supreme Court with its sympathisers.
The unratified Corwin amendment would have amounted to an entrenched clause of the United States Constitution, protecting states' rights to continue slavery.
