Rigid constitutional norms, treaties and the like place significant ties on democratic politics. If such norms are not to be condemned as an illegitimate "dead hand of the past", what contents are they to entrench? Taking Germany's Basic Law as an example, Jakob Hohnerlein's study proposes criteria for the normative discussion as well as constitutional doctrine.

This book explores the concept of democratic reversibility: Democratic majorities
at any time should be able to change previous democratic decisions. I analyze
how constitutions and other legal forms limit reversibility and how constitutional
interpretation can help to ensure sufficient democratic dynamics.
In modern societies law is a product of contingent political decisions. To be
legitimate they must result from a democratic process - and they should be subject
to revision in a new democratic process. If democracy is characterized by
open discussions in representative institutions and the public sphere, decisions
can be no more than a "caesura in an ongoing discussion" (Habermas). The majority
rule is the fairest way to decide when people disagree on the best solution

• but only if the minority has the equal chance to become the majority (Kelsen).
  New generations should not be bound by the will of the dead (Jefferson).
  However, in modern legal systems democratic reversibility is significantly
  limited. They have developed mechanisms to entrench norms, i.e. to take them
  out of the hands of ordinary democratic decision-making. The very idea of constitutions
  is to freeze certain norms. Even if amendments are not precluded by an
  "eternity clause", they have to be carried out in a particularly onerous procedure.
  Typically, a supermajority is required, thus a minority can block any departure
  from the status quo. In a similar vein, the obligations of states from international
  treaties can in principle only be changed by the consent of all state parties. Moreover,
  some constitutions require qualified majorities for legislation in certain areas.
  In many legal orders there are constitutional doctrines according to which
  new legislation must respect previously awarded rights or legitimate expectations.
  The intensity of all those limits on present majorities to change legal norms
  enacted in the past varies among legal orders, particularly depending on the existence
  of judicial review. But even if entrenched norms are not controlled by
  courts, they are normally respected as authoritative in political discussions.
  How can rigid forms of law be justified? I argue that it is not convincing to
  attribute legal norms adopted by a qualified majority a democratic superiority
  vis-à-vis ordinary laws because it gives the preference to the status quo. A similar
  concern holds for the concept of constituent power. It is not plausible to understand
  the constitution as the will of the people themselves which should prevail
  over the will of representative institutions. The idea of relatively fixing certain
  norms in a constitution is, rather, that such norms establish a conception to ensure
  the legitimacy of laws. This is especially plausible for rules relating to the
  form of democratic decision-making and the protection of individual rights. On
  the contrary, in a pluralistic society, norms that establish certain conceptions of
  the common good, e.g. cultural institutions or economic principles, should be
  open for continuous democratic discussion and easy revisions. The distinction of
  norms for which there are good reasons to entrench them in the constitution from
  issues that should be left to daily politics ought to be extended to other forms of
  hard law. For example, international treaties may legitimately limit democratic
  reversibility on the ground of human rights, whereas in the field of economic
  cooperation there should be mechanisms to enable the adaption or termination of
  states' obligations according to the present democratic will.
  Beyond the theoretical considerations, the book examines the role of constitutional
  interpretation in relation to democratic reversibility. For example, the
  making of the German Basic Law can largely be understood not just as binding
  future majorities to the will of the framers but as transforming legitimacy conceptions
  from political theory into constitutional law. The task of constitutional
  interpretation is, then, to further develop these ideas. The example of the discussion
  whether it was constitutional to introduce same-sex marriage in Germany by
  amending the civil code only shows us how various constitutional interpretations
  may enhance democratic reversibility in contrast to an originalist reading. Another
  issue examined in this chapter is whether the constitutional amendment procedure
  of art. 79 GG can be used to constitutionalize any norm by qualified majority.
  As the "eternity clause" provides protection of the democratic principle, I
  argue for a standard of evaluation which determines the admissible scope of
  constitutional amendment relating to its content. The Basic Law contains a conception
  that certain issues should be regulated in current legislation which may
  not be completely abandoned by constitutional amendment.
  Constitutional interpretation also determines how far the legislature is bound
  due to its own decisions. While some scholars understand constitutional limitations
  to the reversibility of past laws in an overly broad way, I suggest that limitations
  in the name of the protection of legitimate expectations etc. can only be
  defended if they aspire to individual rights protections. The promise to keep a
  law for a certain time is to be considered but does not lead to a self-induced
  freezing of the law. Another kind of self-binding occurs when treaties are concluded.
  Whereas the German constitutional court argues that the democratic
  principle implies that legislation can always override treaty obligations, I prefer
  a more nuanced approach. I suggest that one should analyze whether the treaty
  contains sufficient withdrawal mechanisms and distinguish the content of the
  treaty in relation to democratic reversibility.

Autorentext
Geboren 1987; Studium der Rechtswissenschaft in Konstanz, Freiburg und Madrid; 2014 Erstes Staatsexamen; Studium der Politikwissenschaft und Geschichte in Freiburg und Madrid (Bachelor of Arts 2015); 2019 Promotion in Freiburg, zugleich Wissenschaftlicher Mitarbeiter am Institut für Staatswissenschaft und Rechtsphilosophie, Abt. 2; seit 2018 Referendariat in Berlin.