11 - Bills of Rights with Strings Attached

Summary

Some constitutions use savings clauses to shield from judicial review laws that have been in force prior to their adoption, fostering a unique dialogue between representative bodies and the courts. They state that existing laws shall remain valid even if inconsistent with the constitution. Scholars view this phenomenon as esoteric, appearing only in African or Caribbean countries. But it is widespread, covering both civil law and common law countries. Countries have used such provisions to shield discriminatory religious and gender practices, the death penalty, and even slavery. The phenomenon should have spurred discussion, yet there is no literature offering a comprehensive theoretical and comparative framework. When the rationale for adopting a savings clause is that existing law is good, it might lead to an originalist interpretation of the constitution. Past laws may affect the interpretation of the constitution rather than the opposite. When savings clauses are adopted to stabilize the system or shield discriminatory practices, courts may try to read them narrowly to minimize their effects. Savings clauses suggest that constitutional development is more evolutionary than typically suggested. But these clauses might postpone rather than resolve the conflict over sensitive issues. At times, it takes a revolution to restart the system free of savings clauses.