Functional entrenchment is hard to police because policy and entrenchment motives overlap inextricably

Evidence

The problem of mixed motives and effects also seems more pervasive and severe as applied to functional entrenchment. As we have seen, labor law, tort reform, and immigration policy can serve as entrenchment mechanisms; but they are also labor law and tort reform and immigration policy. When entrenchment is accomplished through changes in substantive policy, there will always be a plausible case to be made that the motivation was policy rather than politics, and, to the extent this is true, invalidating legislation on entrenchment grounds would mean blocking the enactment of democratically preferred policies. — Daryl Levinson and Benjamin I. Sachs, Political Entrenchment and Public Law, 427

Categorization

• XREF: Relates to the asymmetry between formal constitutional entrenchment (visible, revocable only by supermajority) and policy handcuffing — connects to broader Lockean/constitutional theory work on entrenchment and of the rationalizing-ideology question. — connects to: Scholarship fails to see functional entrenchment as equal in democratic stakes to formal entrenchment — Daryl Levinson and Benjamin I. Sachs, Political Entrenchment and Public Law, 26; Scholars have documented many functional strategies to insulate policies — Daryl Levinson and Benjamin I. Sachs, Political Entrenchment and Public Law, 190; Functional entrenchment can be legitimate when it insulates sound policies against short-term reversal — Daryl Levinson and Benjamin I. Sachs, Political Entrenchment and Public Law, 393 (+2 more)
• QUESTION: When is a substantive policy genuinely ‘politically motivated entrenchment’ versus just policy? This passage underlines that the answer may be undiscoverable in principle, which bears on whether a rationalizing ideology embedded in law can even be identified as such.