Constitutional amendment

For a list of methods of amendment, see List of methods of constitutional amendment.

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.

Amendment procedures

• 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.

• 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 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.

• Referendum: Some constitutions may only be amended with the direct consent of the electorate in a referendum. In some American 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 an 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.

• 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. Eg: Iceland, Denmark, the Netherlands. Norway.

• Successive majorities followed by a referendum: US states such as Wisconsin require approvals by the legislature in 2 consecutive terms followed by a referendum vote.

• 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 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.

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.

Inadmissible amendments

Some constitutions 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, Resistance] 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 slavery-concerned provisions of the constitution.
• 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 bi-cameral system and the principles of freedom and equality established in this Constitution."

Form of changes to the text

Once made, amendments to most constitutions take the form of revisions to the main body of the text. They may, however, also be appended as articles of amendment to the end of the text, leaving the body of the original text intact. One problem with appending articles to the end of the text is that it may create 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 repealling a specified article ⁶. Amendments to the constitution of the US are appended to the end of the original text, as are those to the constitution of Venezuela.

Footnotes

1. Some argue that with demographic changes the bar to the amendment of the US constitution is now set too high. It is said that today a mere 4% of the US population can, in theory, block an amendment desired by the remainder of the population.
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.

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.

Related topics

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

External links

• International Constitutional Law (Database of national constitutions)
• Government Offices of Iceland - Constitution of Iceland
• Representative Democracy for the Modern Era, a proposed amendment to the U.S. Constitution by Michael J. Farrand.