Amendments: Understanding Their Legal Status

Amendments to the constitution are considered a level above laws as they change and amend the constitution. They are often subject to specific procedures and customs established by the relevant authorities. In some jurisdictions, such as Ireland, Estonia, and Australia, constitutional amendments originate as bills and become laws through acts of parliament, sometimes requiring approval through a referendum. In the United States, a proposed amendment originates as a special joint resolution of Congress, while in the Netherlands, a simple majority is required to propose a constitutional change, followed by a two-thirds majority in both houses of parliament to enact the change. The process of amending a constitution varies, but it generally involves a supermajority requirement and often includes safeguards to protect fundamental aspects of the state, such as democratic principles and human rights.

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Amendments are a level above laws

Amendments to the Constitution are considered a level above laws. They are a type of change that serves to modify and adapt the basic scheme of government. In the United States, a proposed amendment originates as a special joint resolution of Congress, which does not require the President's signature or approval. This is in contrast to an Act of Congress, which requires a majority in both houses and the President's approval, or a two-thirds majority in Congress to override a veto.

Constitutional amendments are a more powerful tool as they can grant Congress additional powers and fundamentally alter the framework of government. They are also more difficult to enact, requiring a supermajority in both houses of Congress and the approval of state legislatures. This is a deliberate feature to ensure stability and prevent rapid or drastic changes to the Constitution.

The process of amending the Constitution is formal and rigorous. In the US, after Congress proposes an amendment, it is the responsibility of the Archivist of the United States to administer the ratification process. Once an amendment is ratified by three-fourths of the states, it becomes part of the Constitution. This process ensures that any changes to the fundamental laws of the nation are carefully considered and widely supported.

In other countries, there are also specific procedures for amending constitutions. For example, in the Netherlands, a simple majority is required to propose a constitutional change, but a two-thirds majority in both houses of parliament is needed to enact it. In Turkey, one-third of the Grand National Assembly must propose an amendment, which then requires a three-fifths majority for adoption. These variations in process highlight the importance placed on constitutional amendments and the need for consensus in making such changes.

The significance of amendments as a level above laws is evident in their ability to shape and redefine the foundational principles of a nation. They provide a mechanism to adapt to changing societal needs while maintaining the integrity of the Constitution.

The process of amending constitutions

In the United States, the authority to amend the Constitution is derived from Article V of the Constitution. The process begins with a proposed amendment in the form of a joint resolution from Congress, which requires a two-thirds majority vote in both the House of Representatives and the Senate. Notably, the President does not have a role in this process, and the resolution does not require their signature or approval. Instead, the original document is sent to the Office of the Federal Register (OFR) for processing and publication. The OFR adds legislative history notes, publishes the resolution in slip law format, and assembles an information package for the states.

Subsequently, the amendment is formally submitted to state legislatures, and a proposed amendment becomes part of the Constitution once ratified by three-fourths of the states (38 out of 50). When the OFR receives the required number of authenticated ratification documents, it drafts a formal proclamation for the Archivist to certify the amendment's validity. This certification is published in the Federal Register and U.S. Statutes at Large, serving as official notice that the amendment process is complete.

Other countries have their own unique processes for amending their constitutions. For example, the Constitution of Turkey requires that amendments be proposed in writing by at least one-third of the members of the Grand National Assembly. These bills undergo two debates in the Plenary and require a three-fifths majority for adoption. Similarly, the Constitution of Poland outlines that a bill to amend the Constitution may be submitted by at least one-fifth of the statutory number of Deputies, the Senate, or the President of the Republic.

Some constitutions also employ entrenched clauses to restrict the types of amendments allowed. For instance, Article 79 (3) of the German Basic Law forbids modifications to the country's federal nature and the abolition or alteration of fundamental articles pertaining to human dignity, human rights, and democracy.

Amendments in different jurisdictions

Amendments to a constitution are often subject to special procedures that are more stringent than those for ordinary legislation. These procedures can vary significantly between jurisdictions. For example, in Ireland, Estonia, and Australia, constitutional amendments originate as bills and become laws through acts of parliament, but they must also be approved via a referendum. In the United States, a proposed amendment takes the form of a special joint resolution of Congress, which neither requires the President's signature nor can be vetoed.

The process of recording constitutional amendments also differs between jurisdictions. The first method, used by most jurisdictions, involves revising the previous text by deleting portions of the original text or inserting new articles among existing ones. The second method, less commonly used, involves appending the amendment to the end of the main text as a special article of amendment, leaving the original text intact. This method is used in the United States and Venezuela.

Some jurisdictions restrict the kinds of amendments that can be made to their constitutions. For instance, Article 79 (3) of the German Basic Law forbids modifications to the federal nature of the country and the abolition or alteration of certain fundamental rights. Similarly, Article 139 of the Italian Constitution states that "the republican form cannot be subject to constitutional revision".

The ease with which a constitution can be amended varies. For example, the former constitution of Alabama was amended 977 times between 1901 and 2022, while Japan has not passed any amendments in several decades. The process of amending a constitution can be complex and time-consuming, requiring multiple stages of approval and specific majorities or supermajorities. For example, in Poland, a bill to amend the constitution must be submitted by at least one-fifth of the statutory number of deputies, the Senate, or the President, and it must be adopted by both the Sejm and the Senate within 60 days. In the United States, the process begins with a proposal from Congress, followed by ratification by three-fourths of the states (38 out of 50).

In summary, the process of amending a constitution varies across different jurisdictions, with unique procedures, requirements, and restrictions in place. These variations reflect the specific needs, histories, and political systems of each jurisdiction.

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Limitations on amendments

Article V of the US Constitution sets out the procedures for amending the Constitution. For an amendment to be valid, it must be ratified by the legislatures of three-fourths of the states or by conventions in three-fourths of the states. The article also includes certain limitations on what can be amended.

The last two sentences of Article V make certain subjects unamendable. The first sentence prohibited amendments before 1808 that would have affected the Constitution's limitations on Congress's power to restrict the slave trade or levy certain taxes on land or slaves. This limitation has since expired. The second sentence, which remains in effect, prohibits amendments that would deprive states, without their consent, of their equal suffrage in the Senate.

Another example of a limitation on amendments is the Twenty-second Amendment, which imposes term limits on the presidency. This amendment, ratified in 1951, establishes that no person shall be elected president more than twice and outlines stipulations regarding eligibility for succession in unfinished presidential terms. This amendment cannot be applied retroactively to a sitting president at the time of its proposal.

Additionally, some amendments include provisions that protect against their own amendment. For example, the Eighteenth Amendment, which established the prohibition of alcohol, included a clause stating that it "shall not be so construed as to affect the election or term of any Senator chosen before it becomes valid as part of the Constitution." This amendment was later repealed by the Twenty-first Amendment.

The authority to amend constitutions

In other countries, such as Ireland, Estonia, and Australia, constitutional amendments originate as bills and become laws through acts of parliament, often requiring approval through a referendum. For example, in Ireland, a simple majority of voters is required, while Australia has a more complex set of criteria, needing a majority of voters in a majority of states. Switzerland follows a procedure similar to Australia's.

Some constitutions have specific requirements for amending their constitutions. For instance, the Constitution of Turkey stipulates that amendments must be proposed in writing by at least one-third of the members of the Grand National Assembly. The amendments are then debated twice in the Plenary and require a three-fifths majority for adoption. The Constitution of Poland outlines that a bill to amend the Constitution may be submitted by at least one-fifth of the statutory number of Deputies, the Senate, or the President of the Republic.

The Constitution of the Netherlands requires a simple majority for a proposed law to change the constitution, followed by elections where the proposal is considered again. To enact the change, a two-thirds majority is needed in both houses of parliament. In Ethiopia, the constitution can only be modified by a two-thirds majority of the country's regions and a two-thirds majority of a joint session of the Federal Parliamentary Assembly.

Some constitutions include entrenched clauses that restrict amendments to protect fundamental aspects, such as human rights and the democratic form of government. For example, Article 79 (3) of the German Basic Law forbids modifications to the federal nature of the country and the abolition or alteration of certain fundamental rights. Similarly, Article 139 of the Constitution of Italy states that "the republican form cannot be subject to constitutional revision".

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