Eleanor Finch
The constitution is a country's foundational legal document, outlining the rights and responsibilities of its citizens and the structure of its government. While it is meant to be a stable framework, it is not set in stone, and amendments are often necessary to reflect societal changes. However, the process of amending a constitution varies across nations, and some parts may be deemed unamendable. For instance, the US Constitution has certain unamendable subjects, including the prohibition of amendments that would deprive a state of its equal suffrage without consent. Similarly, the German Weimar Constitution of 1919 allowed deviations through supermajorities in parliament, but this was later ruled out in the 1949 constitution. In contrast, the Austrian Constitution is liberal regarding amendments, with any parliamentary legislation designated as constitutional law through supermajority. The Texas State Constitution, on the other hand, requires amendments to be approved by a majority of voters in a referendum. These varying approaches to constitutional amendments highlight the complexities of adapting foundational legal documents to evolving societal needs while preserving core principles.
| Characteristics | Values |
|---|---|
| Year | No amendment could be made prior to 1808 |
| Subject | Limitations on Congress's power to restrict or tax the slave trade |
| Subject | Limitations on Congress's power to enact an unapportioned direct tax |
| Structure | Bicameral Congress |
| Structure | House of Representatives with representation based on a state's population |
| Structure | Senate with equal state representation |
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What You'll Learn
The US Constitution is constructively unamendable
The US Constitution is unique in that it is constructively unamendable. This means that while the constitutional text defines a rule as freely amendable, the current political reality makes it practically impossible. This unamendability is not a permanent feature of the Constitution and arises from a mix of factors, including federalism and political hyper-polarization.
Constructive unamendability is one of three types of unamendability, the other two being codified and interpretive. Codified unamendability appears in the text of the constitution as a result of intentional constitutional design, while interpretive unamendability appears in rulings of the authoritative arbiter of the constitution as a result of its interpretation. Unlike these two types, constructive unamendability does not appear in writing but is a result of deep divisions among political actors that lead to a stalemate. This stalemate can be due to political incompatibilities, unpalatable preconditions to amendment, or strong resistance to the idea of amendment, despite the constitutional text authorizing change.
In the case of the US Constitution, federalism creates a complex set of veto points along the path to amendment, making it challenging even under the best circumstances. Additionally, the country's political hyper-polarization exacerbates the difficulty of assembling the supermajorities required by Article V, which outlines the procedures for amending the Constitution.
The US Constitution has been amended 27 times, with the first 10 amendments, known as the Bill of Rights, being ratified in 1791. However, the process of amending the Constitution has become increasingly challenging due to the factors contributing to constructive unamendability.
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Interpretive unamendability
For example, the Supreme Court of India has asserted that political actors cannot amend any aspects of the "basic structure" of the constitution, even though there are no codified rules in the text of the Indian Constitution that are deemed unamendable. Similarly, the Constitutional Court of Colombia has developed a form of interpretive unamendability through the "substitution of the constitution" doctrine, which allows Congress to amend but not replace the Colombian Constitution, based on the theory that the power to amend the constitution is not unlimited.
In contrast to codified unamendability, where the constitutional text explicitly specifies what is unamendable, interpretive unamendability is determined by an authoritative interpreter of the constitution, who decides what is unamendable even when the constitutional text does not mention any limitations on amendment. This form of unamendability is not based on constitutional design or interpretation but rather emerges from the political climate, making it constructively unamendable.
The concept of interpretive unamendability aligns with the logic of interpretive originalism, also known as "preservative unamendability." This philosophy asserts that constitutional meaning must be interpreted through the lens of the founding understanding, preserving the identity and values that were present at the constitution's inception. This ensures that the core principles of a constitutional democracy, such as the rule of law and human rights, are protected from modification short of a constitutional revolution.
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Codified unamendability
The concept of codified unamendability refers to a rule that is formally entrenched as unalterable in the text of a constitution. It is written, visible, and carries the authority derived from the constitution-making process. Codified unamendability communicates to political actors and citizens that certain provisions are off-limits and cannot be amended, even with unanimous consent. This form of unamendability is intentional and deliberate, reflecting a conscious choice by the authors of the constitution.
Examples of codified unamendability can be found in various constitutions worldwide. The Brazilian Constitution, for instance, has codified the unamendability of federalism, while the French Constitution ensures republicanism cannot be amended. Similarly, the Greek Constitution safeguards the separation of powers, and the Portuguese Constitution protects political pluralism. The Turkish Constitution also includes a unique example by codifying the national flag as unamendable.
The reasons behind codifying certain provisions as unamendable vary. Some rules are intended to endure unchanged for the lifetime of the constitution. For instance, the Fundamental Constitutions of Carolina, penned by John Locke, were designed to be "perpetually established," emphasizing their "sacred and unalterable form." This intention is reflected in the text, indicating a deliberate choice to shield these rules from any modification or repeal.
While codified unamendability results in a legal prohibition against amendment, it is important to distinguish it from interpretive unamendability. The latter arises when an authoritative interpreter, such as a court, deems certain provisions unamendable, even though the constitution itself does not specify any unamendable rules. For example, the Supreme Court of India has declared that the "basic structure" of the constitution cannot be amended, despite the absence of codified unamendability rules in the text.
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The will of the people
The US Constitution is a living document that can be amended through a rigorous process. The process of amending the Constitution is outlined in Article V, which also includes certain provisions that are considered unamendable. While the will of the people is a fundamental principle in a democracy, the complexity arises when considering the implications of past decisions on future generations. Scholars have debated the concept of "unamendability" and whether certain provisions are beyond the reach of amendment.
Article V of the US Constitution outlines the process of proposing and ratifying amendments. It requires a two-thirds majority in both houses of Congress to propose an amendment, or a convention for proposing amendments can be called upon the request of two-thirds of the state legislatures. For an amendment to become operative, it must be ratified by three-fourths of the state legislatures or conventions. This process ensures that any changes to the Constitution reflect the will of the people, as expressed by their elected representatives and state legislatures.
However, Article V also includes a clause that prohibits amendments made prior to 1808 from affecting certain clauses in Article I, Section 9. This relates to the limitations on Congress's power to restrict or tax the slave trade and their power to enact an unapportioned direct tax. This provision was included to protect the interests of southern states involved in the slave trade during the Constitution's drafting in 1787.
The inclusion of unamendable subjects in Article V has sparked scholarly debates. Some argue that the provision is "merely declaratory," asserting that the will of the people is sovereign and cannot be bound by past actors. However, the same article also ensures that a state's equal suffrage rights cannot be taken away without its consent, protecting the will of the people in the present from being overruled by the will of the people in the future. This debate highlights the complexity of constitutional interpretation and the evolving nature of the document.
In conclusion, while the US Constitution can be amended through a democratic process that reflects the will of the people, certain provisions within Article V are specifically protected from amendment. The inclusion of unamendable subjects in the Constitution underscores the delicate balance between the need for flexibility and the preservation of fundamental principles. The ongoing scholarly debates around "unamendability" further emphasize the dynamic nature of constitutional interpretation and the ongoing dialogue surrounding the will of the people.
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The US Constitution differs from other constitutions
The US Constitution is the supreme law of the land and all other laws are measured against it. It defines the structure of the national government and dictates the scope and limitation of its powers. The Constitution is comprised of seven articles, which embody the doctrine of the separation of powers, dividing the federal government into three branches: the legislative, the executive, and the judicial.
In addition, the US Constitution is different from other constitutions in that it allows for state constitutions, which have their own body of constitutional law. State constitutions are often longer and more detailed than the federal Constitution, focusing more on limiting rather than granting power. They can be amended more easily than the US Constitution, with amendments proposed by the legislature, a constitutional commission, or citizens' petition, and accepted by referendum.
While the US Constitution has a high bar for amendments, some constitutions have even stricter requirements. For example, the Constitution of Ethiopia's Chapter Three, which covers human and democratic rights, and Articles 104 and 105, can only be amended with the total consensus of the federal regional states and a two-thirds majority of each house of Parliament.
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Frequently asked questions
It means that certain parts of the constitution cannot be changed or modified and are therefore exempt from amendment.
Yes, in the US Constitution, Article V states that no amendment made before the year 1808 can affect the first and fourth clauses in the ninth section of the first article. This prohibited amendments that would have affected Congress's power to restrict or tax the slave trade and to enact an unapportioned direct tax.
Different countries have different methods for amending their constitutions. For example, in the US, amendments are proposed by Congress or a national constitutional convention and must be ratified by three-fourths of the states. In Texas, amendments are proposed by the legislature and must be approved by a majority of voters in a referendum. In Austria, any piece of parliamentary legislation can become part of the constitution if the required supermajority and other formalities are met.
