Amendments: Contradiction Or Cohesion?

A constitutional amendment is a modification of the constitution of a polity, organization, or other type of entity. While laws are generally written to minimize conflicting interpretations, conflicts in interpretation can arise. The idea of an unconstitutional constitutional amendment has been around since at least the 1890s, and it is based on the idea that even a properly passed and ratified amendment can be unconstitutional if it conflicts with a constitutional norm, value, or principle. The determination of whether a conflict exists is generally left to the courts, and the specific rules will take precedence over general rules. In some jurisdictions, such as Norway and Alabama, there are explicit restrictions on what amendments can and cannot do.

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The role of the judiciary in interpreting law

Judicial interpretation is the way in which judges interpret the law, particularly constitutional documents, legislation, and frequently used vocabulary. This is especially important in common law jurisdictions such as the United States, Australia, and Canada, where the supreme courts can overturn laws made by their legislatures through judicial review. The process of judicial interpretation varies across different jurisdictions and legal philosophies.

In the United States, for example, there are several methods of judicial interpretation, including balancing, doctrinalism, and founders' intent. Balancing involves weighing one set of interests or rights against another, often in cases involving conflicting claims such as freedom of speech. Doctrinalism considers how various parts of the Constitution have been shaped by the Court's own jurisprudence. Founders' Intent involves judges attempting to discern the intentions of the authors of a statute or constitution.

Judges may also interpret laws in ways that are not explicitly stated in the text, a practice known as "legislating from the bench" or judicial activism. This approach contrasts with judicial restraint, which focuses on interpreting the laws as they are written. Some legal philosophies, such as strict constructionism, advocate for a narrow interpretation of the text, while others, such as prudentialism, discourage judges from setting broad rules and advise a more limited role for the courts.

In some countries, constitutional amendments must go through a special procedure, such as a referendum, to ensure that they do not contradict existing constitutional principles. For example, Article 121 of the Constitution of Norway stipulates that amendments must not contradict the spirit of the Constitution. Similarly, the Supreme Court of India held that no constitutional amendment can destroy the basic structure of the Constitution. These measures help maintain the integrity of the constitution and prevent revolutionary changes that could undermine its fundamental principles.

Amendments as acts of parliament

Amendments are an important part of the law-making process in many parliaments around the world. They are proposals to change, remove or add to the existing wording of bills to modify their effect. In some jurisdictions, such as Ireland, Estonia, and Australia, constitutional amendments originate as bills and become laws in the form of acts of parliament.

In Australia, an amendment bill must be introduced, debated, and voted on by Parliament in the same way that other bills are decided. If passed, the title of the original Act then includes the word 'amendment'. For example, the "Marriage Amendment (Definition and Religious Freedoms) Act 2017". Any member of parliament can suggest an amendment to a bill, which is called 'moving an amendment'. Amendments can be introduced in either the Senate or the House of Representatives and must be agreed upon by both. Amendments are submitted in writing to the Clerk of the Senate or House, who distributes copies so that members of parliament can decide whether they agree or disagree.

In the UK, the doctrine of parliamentary sovereignty means that the Supreme Court is limited in its powers of judicial review. As a result, any Act of Parliament can become part of the UK's constitutional sources without binding scrutiny.

In Austria, any piece of parliamentary legislation can be designated as "constitutional law" if the required supermajority and other formalities for an amendment are met. This has led to a situation where there are hundreds of constitutional provisions spread throughout the legal system, known as "constitutional garbage".

While the concept of unconstitutional constitutional amendments has been around since at least the 1890s, it remains a complex and evolving area of law. The idea is that even a properly passed and ratified amendment can be unconstitutional if it conflicts with a constitutional norm, value, or principle. For example, Article 121 of the Constitution of Norway states 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". Similarly, Article 60 of Brazil's 1988 Constitution forbids amendments that intend to abolish individual rights or alter the fundamental framework of the State.

Unconstitutional amendments

The concept of "unconstitutional constitutional amendments" has been around since at least the 1890s. It suggests that even a properly ratified constitutional amendment can be deemed unconstitutional if it conflicts with a constitutional norm, value, or principle. For instance, Article 121 of the Constitution of Norway provides that amendments must not "contradict the principles embodied in this Constitution". Similarly, the Constitution of Brazil forbids amendments that intend to abolish individual rights or alter the fundamental framework of the State.

In some jurisdictions, such as Ireland, Estonia, and Australia, constitutional amendments originate as bills and become laws through acts of parliament. In contrast, in the United States, a proposed amendment originates as a joint resolution of Congress, which the President cannot veto. The United Kingdom has a doctrine of parliamentary sovereignty, limiting the Supreme Court's powers of judicial review.

The idea of unconstitutional amendments has been embraced by legal scholars and courts worldwide. For example, in Taiwan, the Council of Grand Justices (Constitutional Court) struck down a Constitutional Amendment, setting a precedent for court review. However, in Finland, the Parliament enjoys sovereignty, and its acts are not subject to judicial review.

While the doctrine has primarily applied to amendments, there have been proposals to extend it to original parts of a constitution. Critics argue that the doctrine should only apply in strongly democratic and inclusive jurisdictions, which many existing constitutions lack.

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Amendments and referendums

The concept of an unconstitutional constitutional amendment has existed since at least the 1890s, with the idea being that an amendment that contradicts or conflicts with constitutional norms, values, or principles can be deemed unconstitutional. This doctrine has been adopted by various courts and legal scholars worldwide, and while it typically applies to amendments, there have been proposals to extend it to original constitutional parts.

A constitutional amendment is a modification to the constitution of a political entity, organisation, or another type of entity. Amendments can be woven into existing sections of a constitution, directly altering the text, or appended as supplemental additions, changing the government's frame without altering the document's existing text. Most constitutions mandate that amendments be enacted through a special procedure that is more stringent than the process for passing ordinary legislation. These procedures may include supermajorities in the legislature, direct approval by the electorate in a referendum, or a combination of both. Referendums to amend constitutions can also be triggered by popular initiatives in some jurisdictions.

The process of drafting and enacting constitutional amendments varies across jurisdictions. In some countries, like Ireland, Estonia, and Australia, amendments originate as bills and become laws through acts of parliament, sometimes requiring additional approval through a referendum. In contrast, the United States follows a different process, with proposed amendments originating as special joint resolutions of Congress that do not require the President's signature or approval.

The interpretation of potential conflicts between constitutional amendments is generally left to the judiciary and higher courts, with the Supreme Court being the highest court in the United States. While legislative bodies write and pass laws, it is the role of the courts to interpret them. The Constitution of the United States, for example, is a legal document subject to interpretation by the courts. In some cases, the US Supreme Court has ruled that Congress cannot use the powers in one clause to bypass the limitations in another.

Some constitutions explicitly prohibit amendments that contradict their underlying principles. For example, Article 121 of the Constitution of Norway stipulates that amendments must not contradict the constitution's principles but only relate to specific provision modifications. Similarly, the Constitution of India, as interpreted by the Supreme Court, forbids amendments that destroy the country's basic structural framework. These provisions ensure that amendments align with the spirit and fundamental values of the constitution.

Limitations and conflicts

The concept of an "unconstitutional constitutional amendment" has been around since at least the 1890s. The idea is that even a properly passed and ratified amendment can be unconstitutional if it conflicts with a constitutional norm, value, or principle. For example, an amendment that converts a democratic government into an aristocracy or monarchy would require a new constitution.

The doctrine of unconstitutional constitutional amendments has been adopted by various courts and legal scholars worldwide, but it primarily applies to strongly democratic and inclusive jurisdictions. The Constitution of Norway, for instance, stipulates that amendments must not contradict the principles embodied in the Constitution but should only relate to modifications of specific provisions. Similarly, the Constitution of Portugal contains a list of 15 items that amendments "must respect". In India, the Supreme Court ruled that no constitutional amendment could destroy the basic structure of the Constitution.

While some countries have strict procedures for amending their constitutions, others, like the United Kingdom, have a doctrine of parliamentary sovereignty, allowing for easier changes to their constitution. In the United States, a proposed amendment originates as a special joint resolution of Congress, while in countries like Ireland, Estonia, and Australia, amendments originate as bills and become laws through acts of parliament, sometimes requiring approval through a referendum.

Despite efforts to minimise conflicting interpretations, legislative bodies and courts may still interpret laws differently. In the United States, the Supreme Court interprets the Constitution and determines whether a conflict exists between amendments. The Court's rulings should be consistent with the Supreme Law of the Land, but lower courts may seek to rule consistently with Supreme Court precedent.

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