Evolution vs Revolution: A Theory of Constitutional Savings Clauses

---

To access the full article, please click here

In this blog, I argue that constitutional savings clauses—provisions that shield outdated laws from judicial review even after a new constitution is adopted—are far more common than many assume, appearing in approximately 40% of the world’s constitutions. While constitutions are often seen as revolutionary breaks from the past, the prevalence of savings clauses reveals a more gradual, evolutionary process.

These clauses serve various purposes. They can honor and preserve a nation’s historical identity, maintain stability during political transitions, or secure compromises necessary for political acceptance of a constitution. Yet, by preserving outdated or discriminatory laws alongside modern constitutional rights, savings clauses often create legal contradictions and unresolved tensions.

Rather than resolving conflicts, savings clauses frequently prolong them, leaving nations caught between progressive reform and conservative backsliding. Understanding the role of savings clauses is essential for grasping why so many countries remain locked in internal struggles over their identity and legal principles.

Suggested Citation:

Evolution vs Revolution: A Theory of Constitutional Savings Clauses, VerfBlog, September 13, 2022.