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.

Contents

1 Amendment procedures 1.1 Mixed systems 2 Inadmissible amendments 3 Form of changes to the text 4 Footnotes 5 References 6 Related topics 7 External links

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 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.

• 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 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. Under many constitutions no amendment at all is permitted during a state of emergency. Under the German constitution abolition of certain basic human rights or of the democratic form of government is forbidden. The Constitution of Italy prohibits any change to the "republican form of the state"⁴, a feature also found in the Portuguese constitution. The provisions of the Turkish constitution relating to the unitary, secular, 'republican' nature of the state are declared irrevocable⁵. Article V of the United States Constitution, ratified in 1788, prohibited any amendments before 1808 which would affect slavery.

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. Article 139.
5. Articles 1, 2 and 3.
6. 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.

Related topics

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

External links

• International Constitutional Law (Database of national constitutions)
• Government Offices of Iceland - Constitution of Iceland

See also: Constitutional amendment, Amendments of the Constitution of Ireland, Amendments to the United States Constitution, Australia, Basic Law for the Federal Republic of Germany, Basic Laws of Israel, Brazil, Bundesrat, Bundestag, Confederation