Reduces social divisions

The argument

The argument accepts that unamendability removes a question from ordinary democratic revision, and holds that this is sometimes exactly what a divided society needs. Once a constitutional provision is made unamendable, it silences constitutional debate surrounding that issue. The dispute no longer has to be won by either side, because it can no longer be reopened, and a question that cannot be reopened stops generating the recurring conflict that a live constitutional question produces. The example offered is the US Constitution. At the insistence of the Southern States of South Carolina and Georgia, Article V of the Constitution explicitly prohibited the abolishment of the African slave trade before 1808. The provision functioned as a condition of agreement rather than as a judgement on the merits of the trade: the states that demanded it would not otherwise have joined, and the framers faced a choice between settling the question for a fixed period and leaving it open to be contested continuously in a new and fragile federation. What the clause achieved, on this reading, was the removal of the bone of contention from public debate. With the matter placed beyond amendment, neither side had anything to gain from mobilising over it while the prohibition ran, and the conflict it would otherwise have generated had nowhere to go. As a result, the founding fathers of the American nation were able to reduce rifts within the young nation and avoid a potential breakup of the union. The general claim drawn from the case concerns function rather than content: an unamendable provision can hold a polity together through the period in which it is least able to withstand a confrontation. Insulating the most divisive question from constant re-litigation reduces divisions in society and promotes harmony, and on this view that makes such a provision democratic in its effect rather than a denial of democracy.

Context

When thoughtfully employed, constitutional unamendability can reduce divisions in society by silencing debate on potentially contentious issues.

Premises

Counter-arguments

This may have been the case in the past when a largely underinformed electorate had limited access to information and was politically disengaged. But today, when everyone can access information from across the globe at the click of a button, constitutionally unamendable provisions do not silence debate, they fuel it. If aspects of the US Constitution were made unamendable today, like the right to bear arms, for example, rather than stifling public discussion and reducing divisions, it would ignite debate and result in a more deeply entrenched public.

Rejecting the premises

[Rejecting P1] Unamendable constitutional elements do not silence debates, they fuel them.