Roznai on Entrenching Secularism in Consitutions

Yaniv Roznai, Interdisciplinary Center (IDC) Herzliya, Radzyner School of Law; New York University, The Hauser Global Law School; University of Haifa, The Minerva Center for the Rule of Law under Extreme Conditions, has published Negotiating the Eternal: The Paradox of Entrenching Secularism in Constitutions at 2017 Mich. St. L. Rev. 253. Here is the abstract.

This article seeks to study the eternal protection of the principle of secularism in national constitutions. It examines actual existing constitutional arrangement which prima facie provide secularism an absolute protection from change in the constitution, in an attempt to identify and explain the character of these existing constitutional arrangements. Part I of this Article discusses Secularism as an Eternal Constitutional Principle. It reviews various constitutions which entrench secularism as an implicit or explicit principle. Part II explains why constitutional eternity should not be regarded as if the protected constitutional principles are non-negotiable. This is demonstrated through three case studies which focus on Turkey, Tajikistan, Mali. Against the backdrop of these case studies, I argue that eternal principles should be regarded as negotiable on three main grounds. First, as long as eternity clauses are not self-entrenched, they can be formal amended. Second, what is protected by the eternity clauses is a constitutional principle – secularism rather than a rule. In light of it elastic meaning, the principle of secularism can therefore be reshaped and reinterpreted with time. Third, when the values protected by constitutional unamendability conflict with the community spirit or the Volksgeist, even the mechanism of constitutional eternity would not be able to hinder the true forces in society which demand change. Part III addresses what I term “the Circle of Eternity”. It demonstrates the central place of eternity in religious laws and natural law, an element which distinguishes them from secular law. It then describes the secular developments in the age of rationalization, in order to finally reveal the paradox of modern constitutional eternity; on the one hand, the basic fundamentals of modern constitutionalism are secular, from the standing point of popular sovereignty and people’s rational ability to decide their faith, destiny and consequently, to design their constitutional order. Yet, at the same time, this very presupposition rests as an unalterable pillar – an absolute truth which the constitutional eternity.

Download the article from SSRN at the link.