Constitutional amendment

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A constitutional amendment is an alteration to the constitution of a nation or a state. In jurisdictions with 'rigid' or 'entrenched' constitutions amendments require a special procedure different from that used for enacting ordinary laws. Many countries have their own rules, laws, and rights that apply to their national (or government's) constitution.

Contents 1 Amendment procedures 1.1 Flexible constitutions 1.2 Special majority 1.3 Referendum 1.4 Successive majorities 1.5 Special requirements in federations 1.6 Mixed systems 2 Inadmissible amendments 3 Form of changes to the text 4 See also 5 Footnotes 6 References

[edit] Amendment procedures

[edit] Flexible constitutions

A flexible constitution is one that may be amended by a simple act of the legislature, in the same way as it passes ordinary laws. The 'uncodified' constitution of the United Kingdom (UK) consists partly of important statutes, and partly of certain unwritten conventions. The statutes that make up the UK constitution can be amended by a simple act of Parliament. UK constitutional conventions are held to evolve organically over time. The Basic Laws of Israel may be amended by an act of the Knesset.

[edit] Special majority

The constitutions of a great many nations provide that they may be amended by the legislature, but only by a special, extra large majority of votes cast (also known as a supermajority, or a 'qualified' or 'weighted' majority). This is usually a majority of two-thirds of the total number of votes cast. In a bicameral parliament it may be required that a special majority be achieved in both chambers of the legislature. In addition, many constitutions require a that an amendment receive the votes of a minimum absolute number of members, rather than simply the support of those present at a meeting of the legislature which is in quorum. For example, the German 'Basic Law' may be amended with the consent of a majority of two-thirds in both the Bundestag and Bundesrat. The constitution of Brazil may be amended with the consent of both houses of Congress by a majority of three-fifths.

[edit] Referendum

Some constitutions may only be amended with the direct consent of the electorate in a referendum. In some states a decision to submit an amendment to the electorate must first be taken by the legislature. In others a constitutional referendum may be triggered by a citizen's initiative. The constitutions of the Republic of Ireland, Denmark, Japan and Australia are amended by means of a referendum first proposed by parliament. The constitutions of Switzerland and of several US states may be amended through the process of popular initiative.

[edit] Successive majorities

Some jurisdictions require that an amendment be approved by the legislature on two separate occasions during two separate but consecutive terms, with a general election in the interim. Under some of these constitutions there must be a dissolution of the legislature and an immediate general election on the occasion that an amendment is adopted for the first time. Examples include the constitutions of Iceland, Denmark, the Netherlands and Norway. This method is also common in subnational entities, such as the United States state of Wisconsin.

[edit] Special requirements in federations

In the constitutions of some federations and confederations there are special provisions to ensure that amendments receive the support of the component states. An amendment to the United States Constitution must be ratified by three-quarters of either the state legislatures, or of constitutional conventions specially elected in each of the states, before it can come into effect ^[1]. In Canada different types of amendments require different combinations of provincial governments representing certain percentages of the national popularion to assent. In referenda to amend the constitutions of Australia and Switzerland it is required that a proposal be endorsed not just by an overall majority of the electorate in the nation as a whole, but also by separate majorities in each of a majority of the states or cantons. In addition, if an Australian referendum specifically impacts one or more states then a majority of the electorate in each of those states must also endorse the proposal.

[edit] Mixed systems

In practice, many jurisdictions combine elements of more than one of the usual amendment procedures. For example, the French constitution may be amended by one of two processes: either a special legislative majority or a referendum. On the other hand, an amendment to the constitution of the US state of Massachusetts must first be endorsed by a special majority in the legislature during two consecutive terms, and is then submitted to a referendum. Some states such as Wisconsin use the same process but do not require supermajorities.

Some constitutions provide that their different provisions must be amended in different ways. Most provisions of the constitution of Lithuania may be amended by a special legislative majority but a change to the status of the state as an "independent democratic republic" must be endorsed by a three-quarters majority in a referendum ^[2]. Unlike its other provisions, a referendum is required to amend that part of the constitution of Iceland that deals with the relationship between church and state ^[3].

[edit] 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 fundamental human rights. Amendments are often totally forbidden during a state of emergency or martial law.

• Under Article 79 of Chapter 7 of the German basic Law, modification of the federal nature of the country or abolition of Article 1 [Human dignity] or 20 [Basic Principles of State] is forbidden.
• The final article of the Constitution of Italy (Article 139, Section 2, Title 6 of Part 2) 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 slave trade, the tax on the slave trade, or the direct taxation provisions of the constitution. If the Corwin amendment had passed, any amendment to the United States Constitution "interfering with the domestic institutions of the state" (i.e. slavery) would have been banned.
• In addition, Article Five of the U.S. Constitution prohibits any amendments which would deprive a state of its "equal Suffrage in the Senate" without that state's consent.
• 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.
• The Constitution of Portugal (Part 4, Section 1, Article 288) contains a long list (15 items) of things which amendments "must respect".
• The Supreme Court of India in the Kesavananda Bharti case held that no constitutional amendment can destroy the basic structure of the Indian constitution

[edit] 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 the Republic of Ireland, Estonia and Australia, constitutional amendments originate as bills and become law 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 Republic of 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 joint resolution of Congress rather than a bill and, unlike a bill, is not submitted to the President for his 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 main body of the original 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 as to whether an amendment is intended to supersede an existing article in the text or merely to supplement it. An article of amendment may, however, explicitly express itself as having the effect of repealing a specific existing article ^[4]. 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.

[edit] See also

• List of methods of constitutional amendment
• Amendments to the Constitution of Canada
• Amendments to the Constitution of Ireland
• Amendments to the United States Constitution
• Constitutional referendums in Australia
• List of national constitutions

[edit] Footnotes

1. ^ Some argue that with demographic changes the bar originally set for amendment of the US constitution is now too high.
2. ^ Article 1.
3. ^ As of 2004 the relevant article is Article 62 which establishes the Evangelical Lutheran Church. Other provisions may be amended by a special legislative majority.
4. ^ See by way of example the 21st Amendment to the US constitution on the repeal of prohibition. Section 1 of the article repeals the 18th Amendment.

[edit] References

• Amendment, by Peter Suber. From Philosophy of Law: An Encyclopedia, edited by Christopher Berry Gray, Garland Pub. Co., 1999, vol. I, pp. 31-32.
• 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 (Spring-Fall 1990) 53-78.
• Population Changes and Constitutional Amendments: Federalism versus Democracy, by Peter Suber. University of Michigan Journal of Law Reform, 20, 2 (Winter 1987) 409-490.
• Unamendments, by Jason Mazzone, Iowa Law Review, Vol. 90, p. 1747-1855, 2005.