SSRN-id2814118

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Sofia Ranchordás Constitutional Sunrise
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CONSTITUTIONAL SUNRISE
SOFIA RANCHORDÁS1
(preliminary version)
forthcoming in
Richard Albert, Xenophon Contiades, Alkmini Fontiadou (eds), The Foundations and
Traditions of Constitutional Amendment (Hart Publishing 2017)
Abstract:
This chapter explores the use of sunrise clauses as instruments of constitutional change.
These dispositions allow the constituent power to defer the coming into effect of
constitutional provisions. Contrary to by-law clauses, which delegate constitutional decisions
to the legislator, sunrise clauses do not always require legislative or executive interference.
The delayed commencement of sunrise provisions can be either automatic (e.g., ratification
by all provinces) or contingent upon the verification of legal or factual conditions imposed
by the constituent power (e.g., a referendum).
While these provisions are relatively unknown in the literature on comparative
constitutional law, this chapter suggests that multiple constitutions contain automatic or
contingent sunrise clauses. This is the case of the Belgian, Georgian, Indian, Irish, and the U.
S. constitutions. While the constitutionality of sunrise clauses has been challenged in Ireland
and South Africa, I argue that the inclusion of sunrise clauses is a legitimate form of the
exercise of the constituent power.
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1 Assistant Professor of Constitutional and Administrative Law, Leiden Law School, The Netherlands. I would
like to thank Richard Albert, Jack Balkin, David Grewal, Oran Doyle, Eric Fish, Jürgen Goossens, Nicholas
Robinson, Yaniv Roznai, Mark Tushnet, and Ozan Varol, and the participants of the Boston College Law
School Workshop on Constitutional Amendments for insightful comments on earlier versions of this chapter. I
would also like to extend my gratitude to the Information Society Project and the Niels Stensen Fellowship.
Electronic copy available at: https://ssrn.com/abstract=2814118

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Sofia Ranchordás Constitutional Sunrise
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Table of Contents
1. Introduction!.......................................................................................................................................!3!
2. Sunrise Clauses!.................................................................................................................................!7!
2.1. Automatic and Contingent Sunrise Clauses!.............................................................................!10!
2.2.1. Automatic Sunrise Clauses!................................................................................................!10!
2.2.2. Contingent Sunrise Clauses!...............................................................................................!11!
2.3. Sunrise Clauses and the Use of Conditions!..............................................................................!13!
2.4. Sunrise Clauses and By-Laws!..................................................................................................!17!
3. Contingent Constitutional Change between Retrospective and Foresight!.......................................!18!
3.1.!Sunset!Clauses!..........................................................................................................................!21!
3.2.!Sunrise!Clauses!and!Aspirational!Constitutionalism!................................................................!23!
4. The Constitutionality of Sunrise Clauses!........................................................................................!25!
4.1. Riordan v An Taoiseach!...........................................................................................................!26!
4.2. Sunrise Clauses and the Constituent Power..............................................................................!29!
5. Conclusion!......................................................................................................................................!33!
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Sofia Ranchordás Constitutional Sunrise
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1. Introduction
Constitutions are intergenerational contracts between “we, the people” and our
future-selves. However, some constitutions also aspire to be primarily monologues rather
than dialogues between the constituent power and the future generations. They burden future
generations by entrenching constitutional values against future decline, 2and limit
constitutional change by institutionalizing complex constitutional amendment procedures
and including eternity clauses.3 The legitimacy of this inter-temporal binding as well as the
attempt to shape and protect future generations from themselves has been thoroughly
discussed in the literature.4 Contingent constitutional change, that is, the idea that the
constituent power could defer the coming into effect of certain constitutional provisions and
make them contingent upon the verification of factual or legal conditions (e.g., a referendum,
the enactment of a law as determined by the constitution) has nonetheless remained
undertheorized in the literature on comparative constitutional law.5
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2 Michael Dorf, ‘The Aspirational Constitution’ (2008) 77 George Washington Law Review 1631; Nicholas
Barber, ‘Why Entrench’ (2016) International Journal of Constitutional Law (forthcoming).
3 Yaniv Roznai, ‘Towards a Theory of Unamendability’ (2015) Working Paper, available at
http://www.academia.edu/11053169/TOWARDS_A_THEORY_OF_UNAMENDABILITY; See also Yaniv
Roznai, ‘Unamendability and the Genetic Code of the Constitution’ (2015). New York University Public Law
and Legal Theory Working Papers. Paper 514, available at http://lsr.nellco.org/nyu_plltwp/514; Ulrich K.
Preuss, ‘The Implications of “Eternity Clauses”: The German Experience’ (2011) 44 Israel Law Review 429;
Andrew Friedman, ‘Dead Hand Constitutionalism: The Danger of Eternity Clauses in New Democracies’ (2011)
4 Mexican Law Review 77, 80.
4 Anuj C. Desai, ‘What a History of Tax Withholdings Tells US About the Relationship Between Statutes and
Constitutional Law’ (2014) 108 Northwestern. Law Review 859. Michael J. Klarman, ‘Majoritarian Judicial
Review: The Entrenchment Problem’ (1997) 85 Georgetown Law Journal 492, 496; Rosalind Dixon & Tom
Ginsburg, ‘Deciding Not to Decide: Deferral in Constitutional Design”, (2011) 9 International Journal of
Constitutional Law 636, 637; see also Jack Balkin & Reva Siegel (Eds.), The Constitution in 2020 (Oxford,
Oxford University Press, 2009); Jack Balkin, Constitutional Redemption: Political Faith in an Unjust World
(Cambridge, Harvard University Press, 2011).
5 In the U.S. constitutional law, sunrise clauses have been discussed primarily by Akhil Amar, see Akhil Reed
Amar, America’s Unwritten Constitution: The Precedents and Principles We Live By (New York: Basic Books
2012) 474-476; Akhil Reed Amar, America’s Constitution: A Biography (New York: Random House 2010).
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Sofia Ranchordás Constitutional Sunrise
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In the past decade, a growing number of scholars has analyzed the relationship
between time and law, in particular in the context of constitutional law.6 The legal literature
has focused on the complexities of temporary legislation, timing laws and their effects,7
sunsetting judicial opinions, 8 comparing temporary and permanent legislation and the
incentives behind its adoption,9 lasting legislation,10 and, in the field of constitutional law,
constitutional change and amendments by desuetude,11 and temporary constitutions.12 This
strand of literature has focused on why, when, and how constitutional and legal dispositions
should terminate. However, little has been said about the opposite phenomenon: the
commencement of constitutional dispositions and whether sunrise clauses should be allowed
make it contingent upon a future event.13
Sunrise clauses have remained a highly overlooked topic in the literature.14 In this
chapter I argue that for example in post-conflict and highly-divided societies and in
transitional contexts,15 sunrise clauses can be important tools to guarantee that the “future
does not arrive too early” and that important, transitional, and aspirational matters that
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See also Edward B. Foley, ‘The Posterity Project: Developing a Method for Long-Term Political Reform’
(2013) 66 Oklahoma Law Review 1 (2013); Daniel E. Herz-Roiphe & David Singh Grewal, ‘Make Me
Democratic, But Not Yet: Sunrise Lawmaking and Democratic Constitutionalism’ (2016) 90 New York Law
Review 1975.
6 Specifically, on time and law, and the effects of ‘temporary de-juridification’, see Antonios Kouroutakis &
Sofia Ranchordás, ‘Snoozing Democracy: Sunset Clauses, De-juridification, and Emergencies’ (2016) 25
Minnesota Journal of International Law 29.
7 Jacob E. Gersen & Eric A. Posner, ‘Timing Rules and Legal Institutions’ (2007) 121 Harvard Law Review
543.
8 Neal Katyal, ‘Sunsetting Judicial Opinions’ (2004) 79 Notre Dame Law Review 1237.
9 See Frank Fagan, Law and The Limits of Government: Temporary Versus Permanent Legislation (Cheltenham:
Edward Elgar 2013).
10 For a critical approach to temporary legislation see Rebecca M. Kysar, ‘Lasting Legislation’ (2011) 159
University of Pennsylvania Law Review 1007; Rebecca M. Kysar, ‘The Sun also Rises: The Political Economy
of Sunset Provisions in the Tax Code’ (2006) 40 (2) Georgia Law Review 335.
11 See Richard Albert, ‘Constitutional Amendment by Constitutional Desuetude’ (2014) 62 American Journal
of Comparative Law 641.
12 Ozan O. Varol, ‘Temporary Constitutions’ (2014) 102 California Law Review 409.
13 On commencement clauses, see Mark Gobbi, ‘When to Begin: A Study of New Zealand Commencement
Clauses with Regard to those Used in the United Kingdom, Australia, and the United States’ (2010), 31 (3)
Statute Law Review 153.
14 In the context of Constitutional Law, see Akhil Reed Amar, FN5 at 474-476.
15 Sujit Choudhry (Ed.), Constitutional Design for Divided Societies: Integration or Accommodation? (Oxford,
Oxford University Press, 2008). See also the special 2013 issue of the International Journal of Constitutional
Law on constitutional transition (vol. 11 (3)), see Sujit Choudhry, ‘Constitutional Transitions in the Middle
East: Introduction’, 11 (3) I CON 611.
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cannot be realistically promised to the people at that time are nevertheless included in the
constitutional agenda. As this chapter explains, this was the case of the former Directive 45
of the Indian Constitution that deferred the commencement of the right to education to a later
date in the hope that the country would have the financial means to grant Indian citizens free
access to education.
Sunrise clauses have been employed in the past century in different constitutions
throughout the world so as to delay the commencement of some of their provisions to a
certain date (automatic sunrise clauses) or make it contingent upon a certain event
(contingent sunrise clauses). To illustrate, the constitution of Georgia of 1995 delayed the
coming into effect of some constitutional provisions to a later date. While the constitution
was due to enter into force “upon the date of recognizing the powers of the newly elected
President and the Parliament of Georgia” (Article 104(1), the commencement of Articles
49(1) [composition of Parliament] and 58(1) [formation of Parliamentary factions] was made
dependent upon the enactment of “appropriate amendments and additions made to the
organic law Election Code of Georgia” (Article 104-1(1)).16 As this chapter explains, this
type of provisions may not abound but it is far from uncommon.17
Although sunrise clauses are relatively unknown in the literature on comparative
constitutional law, the idea of delaying the coming into effect of legal provisions or making
it contingent upon a determined event is present in different fields of law and it can even be
considered to be intrinsic to a legal system. When explicating the use of conditions in
contracts, Arthur Corbin reminded us that “legal relations are merely mental concepts which
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16 According to Article 107 (2) of the Constitution of Georgia, Article 18(2) and (3) of the Constitution would
also only enter into force after the respective criminal procedural legislative acts are adopted.
17 Another example is Article 148 of the Constitution of Tunisia (2014) that also delays the commencement of
multiple dispositions, making them for example contingent upon “the definitive results of the first general
elections,” the direct election of the President, the election of the Assembly of Representatives, and the
enactment of a number of operationalizing statutes.
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