Rivka Weill (Interdisciplinary Center (IDC) Herzliyah - Radzyner School of Law; University of Chicago Law School; Yale Law School) has posted Bills of Rights with Strings Attached: Protecting Death Penalty, Slavery, Discriminatory Religious Practices and the Past from Judicial Review (Constitutional Dialogue: Rights, Democracy, Institutions (Rosalind Dixon, Goeffrey Sigalet, and Grégoire Webber eds., Cambridge Studies in Constitutional Law, Forthcoming)) on SSRN. Here is the abstract:
Some constitutions use savings clauses to shield from judicial review laws that have been in force prior to their adoption, thus, fostering a unique dialogue between the 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 in African or Caribbean countries alone. But this phenomenon is widespread, covering both civil law and commonlaw countries. Over the years, countries have used such provisions to shield discriminatory religious and gender practices, the death penalty, and even slavery. This puzzling 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, this might lead to an originalist interpretation of the constitution. Past laws may affect the interpretation of the constitution rather than the opposite. In contrast, 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 the most sensitive social issues. At times, no less than a revolution is needed to restart the constitutional system free of the burden of savings clauses.