Constitutional amendment
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Constitutional amendment


A constitutional amendment refers to the
modification of the Constitution of a nation or state. In many jurisdictions
the text of the constitution itself is altered; in others the text is not
changed, but the amendments change its effect. The method of modification is
typically written into the Constitution itself. All of the world’s active
national constitutions mention amendment procedures.
Most constitutions require that amendments cannot be enacted unless they
have passed a special procedure that is more stringent than that required of
ordinary legislation. Examples of such special procedures include
supermajorities in the legislature, or direct approval by the electorate in a
referendum, or even a combination of two or more different special procedures. A
referendum to amend the constitution may also be triggered in some jurisdictions
by popular initiative. Australia and Ireland provide examples
of constitutions requiring that all amendments are first passed by the
legislature before being submitted to the people; in the case of Ireland, a
simple majority of those voting at the electorate is all that is required,
whereas a more complex set of criteria must be met in Australia. Switzerland
has procedure similar to that of Australia.
The special procedures for the amendment of some constitutions have proven to be
so exacting that of proposed amendments either few, as in Australia, or none, as
in Japan, have been passed over a period of several decades. In contrast, the
constitution of the U.S. state of Alabama has been amended over 800 times
since 1901. Form of changes to the text
There are a number of formal differences, from one jurisdiction to
another, in the manner in which constitutional amendments are both
originally drafted and written down once they become law. In some jurisdictions,
such as Ireland, Estonia, and Australia, constitutional amendments originate as
bills and become laws in the form of acts of parliament. This may be the case
notwithstanding the fact that a special procedure is required to bring an
amendment into force. Thus, for example, in Ireland and Australia although
amendments are drafted in the form of Acts of Parliament they cannot become
law until they have been approved in a referendum. By contrast, in the United
States a proposed amendment originates as a special joint resolution of
Congress that is not submitted to the President for his or her assent.
The manner in which constitutional amendments are finally recorded takes
two main forms. In most jurisdictions, amendments to a constitution take the
form of revisions to the previous text. Thus, once an amendment has become law,
portions of the original text may be deleted or new articles may be inserted
among existing ones. The second, less common method, is for amendments to be
appended to the end of the main text in the form of special articles of
amendment, leaving the body of the original text intact. Although the
wording of the original text is not altered, the doctrine of implied repeal
applies. In other words, in the event of conflict, an article of amendment will
usually take precedence over the provisions of the original text, or of
an earlier amendment. Nonetheless, there may still be ambiguity whether an
amendment is intended to supersede or to supplement an existing article in the
text. An article of amendment may, however,
explicitly express itself as having the effect of repealing a specific existing
article. The use of appended articles of amendment is most famous as a feature of
the United States Constitution, but it is also the method of amendment in a
number of other jurisdictions, such as Venezuela.
Under the 1919 German Weimar Constitution, the prevailing legal
theory was that any law reaching the necessary supermajorities in both
chambers of parliament was free to deviate from the terms of the
constitution, without itself becoming part of the constitution. This very wide
conception of “amendment” eased the rise of Adolf Hitler to power; it was
consequently explicitly ruled out in the postwar 1949 constitution, which allows
amendments only by explicitly changing the constitution’s text.
Methods of constitutional amendment =European Union=
The Treaties of the European Union are a set of international treaties between
member states that describe the constitutional basis of the European
Union. Amendments must be ratified unanimously by the member states either
by the national parliament or referendum.
Austria The Constitution of Austria is unusually
liberal in terms of constitutional amendments. Any piece of parliamentary
legislation can be designated as “constitutional law”, i.e., as a part of
the constitution if the required supermajority and other formalities for
an amendment are met. An amendment may take the form of a change of the
Bundes-Verfassungsgesetz, the centerpiece of the constitution, a
change to another constitutional act, a new constitutional act, or of a section
of constitutional law in a non-constitutional act. Furthermore,
international treaties can be enacted as constitutional law, as happened in the
case of the European Convention of Human Rights. Over the decades, frequent
amendments and, in some cases, the intention to immunize pieces of
legislation from judicial review, have led to much “constitutional garbage”
consisting of hundreds of constitutional provisions spread all over the legal
system. This has led to calls for reform.
A majority of two-thirds in the National Council. Only in the case of a
fundamental change of the constitution a confirmation by referendum is required.
Since 1945, this has only happened once when Austria’s accession to the European
Union was approved by popular vote. If a constitutional amendment limits the
powers of the states, a two-thirds majority in the Federal Council of
Austria is required as well. Depending on the matter on hand, two-thirds of the
Federal Councilors present, or two-thirds of all Federal Councilors
must approve. If the amendment would change articles 34 or 35, the majority
of councilors of at least four of the nine states is an additional
requirement. Belgium
The Constitution of Belgium can be amended by the federal legislative
power, which consists of the King and the Federal Parliament. In order to
amend the Constitution, the federal legislative power must declare the
reasons to revise the Constitution in accordance with Article 195. This is
done by means of two so-called Declarations of Revision of the
Constitution, one adopted by the Chamber of Representatives and the Senate, and
one signed by the King and the Federal Government.
Following this declaration, the Federal Parliament is automatically dissolved
and a new federal election must take place. This makes it impossible to amend
the Constitution unless an election has intervened. Following the election, the
new Federal Parliament can amend those articles that have been declared
revisable. Neither Chamber can consider amendments to the Constitution unless at
least two-thirds of its members are present and the Constitution can only be
amended if at least two-thirds of the votes cast are in favour of the
amendment. Bulgaria
Under the current Constitution of Bulgaria, there are two procedures for
amendment, depending on the part of the constitution to be amended:
Normal amendment procedure: the Parliament can amend the Constitution
for minor issues with a two-thirds majority. This shall be done in three
successive readings. Special amendment procedure: this
procedure is the only way to revise the international borders of Bulgaria;
change the form of government in the country; change the form in which the
Constitution and international treaties are applied in Bulgaria or suspend
citizens’ rights. When such amendment is needed, the Constitution envisages an
election for Great National Assembly, which consists of 400 deputies, with 200
elected by proportional vote and 200 elected by the first-past-the-post
method. Then the amendments to the Constitution are passed by two-thirds
majority in three successive readings. This procedure is viewed by some critics
as too slow and ineffective. There are voices in Bulgaria to remove the
institution of Great National Assembly, which they view as an anachronism and to
adopt a new procedure of constitutional amendment through popular vote.
Czech Republic Passage of a constitutional act in the
Czech Republic can only be accomplished through the agreement of three-fifths of
all Deputies and Senators present at the time the proposed act is laid before
each house of Parliament. It is the only type of legislation that does not
require the signature of the President to become law. Furthermore, it is the
only type of legislation the President cannot veto.
Denmark The Constitution of Denmark provides an
example of multiple special procedures that must be followed. After an
amendment has been approved by parliament, a general election must be
held; the new parliament must then approve the amendment again before it is
finally submitted to a referendum. There is also a requirement that at least 40%
of eligible voters must vote at the referendum in order for an amendment to
be validly passed. Estonia
The Constitution of Estonia can only be modified by three-fifths majority in two
successive complements of Parliament, and a referendum for certain chapters.
France Amendments to the Constitution of France
must first be passed by both houses with identical terms, and then need approval
either by a simple majority in a referendum or by a three-fifths majority
of the two houses of the French parliament jointly convened in Congress.
Ireland The Constitution of Ireland, can only be
modified by referendum, following proposal approved by the lower and upper
houses of the Oireachtas amongst citizens entitled to vote for the
President. The amendment succeeds by simple majority, and no quorum is
required. Italy
The Constitution of Italy can be modified by the Parliament: a
constitutional bill, approved by the simple majority of both the Houses, has
to be newly approved by them at least 3 months later. If two thirds of the
deputies and two thirds of senators vote in favor, the bill comes in effect. If
the bill is approved only by the majority of the members of the Houses, a
referendum can take place, if 500,000 people, or one fifth of the members of a
House, or 5 out of 20 regional legislatures require it in the three
months after the approval. However, the proposal becomes law after the second
approval. If it is rejected in the referendum, it is repealed. Each
regional legislature or 50,000 people can propose bills to Parliament.
Constitutional bill is required to amend the national Constitution, to amend the
Constitutions of autonomous regions, to put into effect some provisions of the
Constitution and to pass a law that will be considered as a part of Constitution.
A similar procedure is required to amend regional Constitutions of non-autonomous
regions. In place of national Parliament approvals and referendums, regional
legislatures approvals and regional referendums are required. Regional
Constitution can not contrast with national Constitution, while
Constitutions of autonomous regions are considered as a part of it.
Each constitutional bill approved by Italian Parliament, has met the two
third majority, except in 2001 and 2006, when referendums took place. The
constitutional bill approved in 2001, that has increased the powers of the
Regions, was the only one that has been approved by a referendum in Italy.
=United States=Federal constitution
Article Five of the United States Constitution describes the process
whereby the federal Constitution may be altered. Twenty-seven amendments have
been added to the Constitution. Amendment proposals may be adopted and
sent to the states for ratification by either:
Two-thirds vote of members present—assuming that a quorum exists—in
both the Senate and the House of Representatives of the United States
Congress; OR
By a two-thirds vote of a national convention called by Congress at the
request of the legislatures of at least two-thirds of the states.
All thirty-three amendment proposals that have been sent to the states for
ratification since the establishment of the Constitution have come into being
via the Congress. State legislatures have however, at various times, used
their power to apply for a national convention in order to pressure Congress
into proposing a desired amendment. For example, the movement to amend the
Constitution to provide for the direct election of senators began to see such
proposals regularly pass the House of Representatives only to die in the
Senate from the early 1890s onward. As time went by, more and more state
legislatures adopted resolutions demanding that a convention be called,
thus pressuring the Senate to finally relent and approve what later became the
Seventeenth Amendment for fear that such a convention—if permitted to
assemble—might stray to include issues above and beyond just the direct
election of senators. To become an operative part of the
Constitution, an amendment, whether proposed by Congress or a national
constitutional convention, must be ratified by either:
The legislatures of three-fourths of the states;
OR State ratifying conventions in
three-fourths of the states. Congress has specified the state
legislature ratification method for all but one amendment. The ratifying
convention method was used for the Twenty-first Amendment, which became
part of the Constitution in 1933. Since the turn of the 20th century,
amendment proposals sent to the states for ratification have generally
contained a seven year ratification deadline, either in the body of the
amendment or in the resolving clause of the joint resolution proposing it. The
Constitution does not expressly provide for a deadline on the state
legislatures’ or state ratifying conventions’ consideration of proposed
amendments. In Dillon v. Gloss, the Supreme Court affirmed that Congress—if
it so desires—could provide a deadline for ratification. An amendment with an
attached deadline that is not ratified by the required number of states within
the set time period is considered inoperative and rendered moot.
An amendment becomes operative as soon as it reaches the three-fourths of the
states threshold. Then, once certified by the Archivist of the United States,
it officially takes its place as an article of the Constitution.
State constitutions State constitutions in the U.S. are
amended on a regular basis. In 19 states, the state constitutions have
been amended at least 100 times. Amendments are often necessary because
of the length of state constitutions, which are, on average, three times
longer than the federal constitution, and because state constitutions
typically contain extensive detail. In addition, state constitutions are often
easier to amend than the federal constitution.
Individual states differ in the difficulty of constitutional amendments.
Some states allow for initiating the amendment process through action of the
state legislature or by popular initiative.
=California=There are three methods for proposing an
amendment to the California State Constitution: by the legislature, by
constitutional convention, or by voter initiative. A proposed amendment must be
approved by a majority of voters. With the legislative method, a proposed
amendment must be approved by an absolute supermajority of two-thirds of
the membership of each house. With the convention method, the
legislature may, by a two-thirds absolute supermajority, submit to the
voters at a general election the question whether to call a convention to
revise the Constitution. If the majority of the voters vote yes on that question,
within six months the Legislature shall provide for the convention. Delegates to
a constitutional convention shall be voters elected from districts as nearly
equal in population as may be practicable. The constitution does not
provide many rules for the operation of the constitutional convention.
With the initiative method, an amendment is proposed by a petition signed by
voters equal in number to 8% of the votes for all candidates for governor at
the last gubernatorial election. The proposed amendment is then submitted to
the voters at a general or special election.
=New York=There are two methods of proposing
amendments to the New York Constitution. All proposed amendments must be approved
by a majority of voters in a referendum. With the legislative method, an
amendment proposal must published for three months, then approved by an
absolute majority of the members of each of the two houses, and approved again in
a succeeding term of the houses, with an election intervening. Finally, the
amendment proposal must be submitted to the people, and for ratification must be
approved by a simple majority. With the convention method, a
constitutional convention must be convened by a majority vote of voters in
a general election on the question.=Tennessee=
There are two methods for proposing amendments to the Tennessee State
Constitution: through the legislature and by constitutional convention.
Proposed amendments must be approved by a majority of voters in a referendum.
With the legislative method, the Tennessee General Assembly passes a
resolution calling for an amendment and stating its wording. This must pass in
three separate readings on three separate days, with an absolute majority
on all readings. It does not require the governor’s approval. It must then be
published at least six months before the next legislative election in newspapers
of wide and general circulation. After the election, the proposed amendment
must go through the same procedure. Then it is put on the ballot as a referendum
in the next gubernatorial election. To be ratified it must again achieve an
absolute majority of those voting in the gubernatorial election.
With the convention method, the legislature can put on any ballot the
question of whether to call a constitutional convention. It must be
stated whether the convention is limited or unlimited—that is, whether it can
only amend the current constitution or totally abolish it and write a new one.
If limited, the call must state which provisions of the current constitution
are to be subject to amendment, and the subsequent convention, if approved, is
limited to considering only amendments to the provisions specified in the call.
The proposed amendments must then be submitted to the electorate and approved
by a majority of those voting in the election. A constitutional convention
cannot be held more frequently than once every six years.
=Texas=The only method for proposing an
amendment to the Texas State Constitution is through the legislature,
either in regular or special session. The governor may call a special session,
and specify the agenda for the session. To become part of the constitution,
proposed amendments must be approved by a majority of voters in a referendum.
Texas has had six different constitutions and the current
constitution, adopted in 1876, has been amended 474 times.
A proposed amendment must be approved by an absolute supermajority of two-thirds
of the elected membership of each house of the legislature. It is submitted to
the voters in an election specified by the legislature. The wording of an
explanatory statement that will appear on the ballot must be approved by the
Texas Attorney General and printed in newspapers. The full text of the
amendment must be posted by all county clerks for 30 days before the election.
=Washington=The only method for proposing an
amendment to the Washington State Constitution is through the legislature
and can originate in either branch. The proposal must be approved by a
two-thirds majority of the legislature. The proposed amendment is placed on the
ballot at the next general election, and must be approved by a majority of the
electors.=Australia=
The procedure for amending the Constitution of Australia is detailed in
Section 128 of the Constitution. It firstly requires that the proposal
pass by absolute majority in the House of Representatives. This means that out
of the 150 members of the House, at least 76 of them must agree to the
proposal. If this succeeds then the proposal is
moved to the Senate where it again must achieve an absolute majority, This means
that of the 76 members of the Senate, at least 39 of them must agree to the
proposal. Following this, Australians then vote on
the proposal. For a referendum to succeed both of the following must be
achieved A majority of states must agree to the
proposal. A majority of the combined votes of all
of Australia must agree to the proposal. The double majority is a major factor in
why since 1906 out of 44 referendums only 8 have been successful.
=South Africa=The Constitution of South Africa can be
amended by an Act of Parliament, but special procedures and requirements
apply to the passage of constitutional amendments. A bill amending the
Constitution must be introduced in the National Assembly, and cannot contain
any provisions other than constitutional amendments and directly related matters.
At least 30 days before a constitutional amendment bill is introduced in the
National Assembly, the person or committee introducing the amendment must
publish it for public comment, submit it to the provincial legislatures, and, if
it does not have to be passed by the National Council of Provinces, submit it
to the NCOP for debate. When the bill is introduced, the comments received must
be tabled in the National Assembly, and in the NCOP when appropriate.
All amendments must be passed by an absolute two-thirds supermajority in the
National Assembly; as the Assembly has 400 members this requires 267 members to
vote for the amendment. Most amendments do not have to be considered by the
NCOP. Amendments of the Bill of Rights, and amendments affecting the role of the
NCOP, the “boundaries, powers, functions or institutions” of the provinces or
provisions “dealing specifically with provincial matters” must also be passed
by the NCOP with a supermajority of at least six of the nine provinces. If an
amendment affects a specific province, it must also be approved by the
legislature of the province concerned. Section 1, which defines South Africa as
“one, sovereign, democratic state” and lists its founding values, is a
specially entrenched clause and can only be amended by a three-quarters
supermajority in the National Assembly and six of the provinces in the NCOP.
Once an Act is passed by the National Assembly, and by the NCOP if necessary,
it must be signed and assented to by the President. As with any other Act of
Parliament, by default an amendment comes into effect when it is published
in the Government Gazette, but the text of the amendment may specify some other
date of commencement, or allow the President to specify one by notice in
the Gazette. Inadmissible amendments
Some constitutions use entrenched clauses to restrict the kind of
amendment to which they may be subject. This is usually to protect
characteristics of the state considered sacrosanct, such as the democratic form
of government or the protection of human rights. Amendments are often totally
forbidden during a state of emergency or martial law.
Under Article 79 of the German Basic Law, modification of the federal nature
of the country or abolition or alteration of Article 1 or Article 20 is
forbidden. This is supposed to prevent a recurrence of events like those during
the Nazi Gleichschaltung, when Hitler used formally legal constitutional law
to de facto abolish the constitution. The final article of the Constitution of
Italy holds the “form of Republic” above amendment.
Article 4 of Part 1 of the Constitution of Turkey states that the “provision of
Article 1 of the Constitution establishing the form of the state as a
Republic, the provisions in Article 2 on the characteristics of the Republic, and
the provision of Article 3 shall not be amended, nor shall their amendment be
proposed”. Article Five of the United States
Constitution, ratified in 1788, prohibited any amendments before 1808
which would affect the foreign slave trade, the tax on the slave trade, or
the direct taxation provisions of the constitution. The foreign slave trade
was outlawed by an act of Congress rather than by a constitutional
amendment shortly after that clause expired in 1808. Also, no amendment may
affect the equal representation of states in the Senate without their own
consent. If the Corwin amendment had passed, any future amendment to the
Constitution “interfering with the domestic institutions of the state”
would have been banned. Chapter 6, Article 120, section c of the
Constitution of Bahrain prohibits “an amendment to Article 2 [State Religion,
Shari’a, Official Language] of this Constitution, and it is not permissible
under any circumstances to propose the amendment of the constitutional monarchy
and the principle of inherited rule in Bahrain, as well as the bicameral system
and the principles of freedom and equality established in this
Constitution”. Article 112 of the Constitution of
Norway provides that amendments must not “contradict the principles embodied in
this Constitution, but solely relate to modifications of particular provisions
which do not alter the spirit of the Constitution”.
Section 284 of Article 18 of the Alabama State Constitution states that
legislative representation is based on population, and any amendments are
precluded from changing that. Part 4, Section, Article 288 of the
Constitution of Portugal contains a list of 15 items that amendments “must
respect”; Article 288 itself can, however, be amended.
The Supreme Court of India in the Kesavananda Bharati case held that no
constitutional amendment can destroy the basic structure of the Constitution of
India. Article 60 of the current 1988
Constitution of Brazil forbids amendments that intend to abolish
individual rights or to alter the fundamental framework of the State—the
Separation of Powers and the Federal Republic.
Article 152 of the Constitution of Romania on the “limits of revision”
prohibits amendments regarding the independence and territorial integrity
of Romania, the independence of justice, the republican form of government,
political pluralism, and the official language. It also forbids amendments
which restrict civil rights and liberties.
See also 2008 Amendments to the Constitution of
Russia Amend
Amendments to the Constitution of Canada Amendment of the Constitution of India
Amendments to the Constitution of Ireland
Amendments to the United States Constitution
Constitutional referendums in Australia List of national constitutions
List of proposed amendments to the United States Constitution
Further reading “Amendment”, by Peter Suber. From
Philosophy of Law: An Encyclopedia, edited by Christopher Berry Gray,
Garland Pub. Co., 1999, vol. I, pp. 31–32.Bill West 1985- 2003. Vol
98-85-96-6 Law .edu.216 Esd The Paradox of Self-Amendment: A Study
of Logic, Law, Omnipotence, and Change, by Peter Suber. Full-text of the book,
now out of print. Peter Lang Publishing, 1990. For an essay-length synopsis, see
“The Paradox of Self-Amendment in American Constitutional Law”, Stanford
Literature Review, 7, 1–2 53–78. “Population Changes and Constitutional
Amendments: Federalism versus Democracy”, by Peter Suber. University
of Michigan Journal of Law Reform, 20, 2 409–490.
“Unamendments”, by Jason Mazzone, Iowa Law Review, Vol. 90, p. 1747–1855, 2005.
“The Structure of Constitutional Amendment Rules”, Richard Albert, “Wake
Forest Law Review”, Vol. 49, 2014. “The Expressive Function of
Constitutional Amendment Rules”, Richard Albert, “McGill Law Journal”, Vol. 59,
2013 References
External links Report on Constitutional Amendment,
Venice Commission Government Archives – Constitutional
Amendment

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