[lnl]

If that was how it was meant to be understood, it could have easily been written explicitly by making it a recursive clause. E.g. in the case of my country, article 4 of the constitution says that the first 3 articles cannot be changed; it could have said first 4 articles cannot be changed, thereby making it a legal impasse.

More likely, the authors of entrenched clauses understood that, if it came to that, making that change illegal wouldn't prevent a slip to dictatorship. That impasse would only hinder the honest actors, if in the future there came a time when those entrenched clauses really legitimately need to be changed; and hence that door was deliberately left open.

Sure, if it came to that, judges may still rule your way to slow down the slide the dictatorship, but then the next constitutional amendment would be "all judges are retired, here's how new judges are selected". Or some other legal maneuver. Even the strongest clauses could be circumvented if they have enough support or power, let alone feeble interpretations of implicit clauses.

[anoncake]

> If that was how it was meant to be understood, it could have easily been written explicitly by making it a recursive clause.

It could. But why explicitly write down things that are obvious anyway?

> More likely, the authors of entrenched clauses understood that, if it came to that, making that change illegal wouldn't prevent a slip to dictatorship. That impasse would only hinder the honest actors, if in the future there came a time when those entrenched clauses really legitimately need to be changed; and hence that door was deliberately left open.

No, the Basic Law was very much designed to make another slip into dictatorship impossible using legal means. The idea that the eternity clause was deliberately made toothless in case we actually do want to abolish human rights, democracy and rule of law again is frankly absurd.

> Sure, if it came to that, judges may still rule your way to slow down the slide the dictatorship, but then the next constitutional amendment would be "all judges are retired, here's how new judges are selected".

That constitutional amendment would simply be unconstitutional and thus invalid. Law is not code. If you violate its intent, you violate it.

[lnl]

> It could. But why explicitly write down things that are obvious anyway?

Maybe it's obvious to you; to me it's obvious the other way. Perhaps, when penning their supposed bulwark against dictatorship, they could afford to spend a few more drops of ink?

If the authors of such entrenched clauses really meant it the way you imply, they are doubly idiots, first for thinking that such legal technicalities would help prevent the slide into dictatorships, and then for failing to even do that and leave a loophole. I don't think they are idiots and they realized such an attempt would be futile and counterproductive. And focused their efforts elsewhere, to build a proper system with checks and balances so power would not be concentrated.

> The idea that the eternity clause was deliberately made toothless in case we actually do want to abolish human rights, democracy and rule of law again is frankly absurd.

No dictator would bother with amending such toothless abstract parts anyway. They would simply claim they are the greatest champion of human rights, and that their abuses are actually not abuses at all. The parts that are worth changing are concrete, technical details; like how are the judges that decide whether those are abuses are appointed. And those parts that the dictator might want to modify, may also legitimately need to be modified in the future, so all constitutions leave the door open to that change, yes.

> That constitutional amendment would simply be unconstitutional and thus invalid. Law is not code. If you violate its intent, you violate it.

Of course the prospective dictator would violate the constitution's intent, that's the point. Newly appointed judges would disagree with you about the amendment's constitutionality, though. As would the populace, who would just see unelected judges violating letter of the law to stop the people's will and protect the status quo.

Law is not code, it's what people in power interpret it to be. If a person or group manages to concentrate the power in practice, no legal technicalities help. I live in a country that recently went through that change; all the human rights, freedom of speech, rule of law clauses are there, all the supposed ostensible checks and balances are there, none of it is of any help. You can think in your head that it's not actually constitutional all you like, it's just that the judges, prosecutors, army, police, the censored media and most of the populace would disagree.

[anoncake]

I told you the facts. If you think you know better how my country and its culture work than I do and if you think you know our laws and the history behind them better than German lawyers and historians, I can't help you.

> As would the populace, who would just see unelected judges violating letter of the law to stop the people's will and protect the status quo.

Nope. It would see the most trusted state organ protecting the Basic Law. Which I've capitalized not because I can't spell but because it culturally has a somewhat similar status to the US Constitution in the USA.

[lnl]

I am not talking about Germany at all, certainly not Germany of today. I think you missed that we are talking about a hypothetical future where a prospective dictator with overwhelming support is concentrating power. It already happened in my country; it's not happening in Germany and you correctly identified the reason ("It would see the most trusted state organ protecting the Basic Law."), not because of any entrenchment clause or even supposedly recursive entrenchment clause.

[anoncake]

No, I think you missed that we were indeed talking about Germany.[1] If you want to change the topic, you should have said so :)

[1] https://news.ycombinator.com/item?id=26578639