Isabella Carter
The constitution is the core document that outlines the fundamental principles of a nation. Given its foundational role, the process of amending constitutions is often deliberately made difficult. For instance, the United States Constitution has only been amended 27 times since 1787. The Indian constitution has been amended 106 times since 1950, but the Supreme Court ruled in the Kesavananda Bharati case that the basic structure of the constitution cannot be amended. This 'basic structure' includes the rule of law, independence of the judiciary, and the principle of free and fair elections. Other nations like Brazil, Romania, and Morocco also have constitutional clauses that protect certain fundamental aspects from being amended.
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What You'll Learn
The amendment process
The Indian Constitution has been amended 106 times since 1950. However, the Supreme Court in the Kesavananda Bharati Case ruled that the basic structure of the constitution cannot be amended. This "basic structure" includes the rule of law, the independence of the judiciary, the separation of powers, and federalism, among other principles. Similarly, the Constitution of Brazil forbids amendments that intend to abolish individual rights or alter the fundamental framework of the State.
Other countries have different processes for amending their constitutions. France, for instance, requires amendments to be passed by both houses with identical terms, followed by approval by a simple majority in a referendum or a three-fifths majority of the two houses of parliament. The People's Republic of China allows for amendments to be proposed by more than one-fifth of the deputies to the National People's Congress, with a two-thirds majority vote required for adoption.
In some cases, a constitutional convention may be called to propose amendments. While this has not occurred in the United States, it is an option if two-thirds of the state legislatures request it. The process of amending a constitution is deliberately challenging to ensure the longevity and stability of the document.
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The 'basic structure' of the constitution
The basic structure of a constitution refers to the fundamental principles and values that underpin the nation's laws and governance. It is the framework that supports the entire constitutional system. While constitutions are designed to be amended as necessary, the basic structure is often protected from amendment to safeguard the integrity and stability of the nation's governing principles.
In some countries, the basic structure doctrine has been explicitly recognised by judicial decisions. For example, in the Kesavananda Bharati case, the Supreme Court of India held that while the constitution could be amended, any changes must not destroy the basic structure of the constitution. This includes principles such as the rule of law, the independence of the judiciary, federalism, and the secular nature of the state. Similarly, the Constitution of Brazil forbids amendments that intend to abolish individual rights or alter the fundamental framework of the state, including the separation of powers and the federal republic.
The United States Constitution, on the other hand, does not explicitly recognise the basic structure doctrine. Instead, it outlines amendment procedures in Article V, which include proposing amendments by a two-thirds majority vote in both houses of Congress and ratification by three-fourths of the states. While there are no explicit limitations on amending the basic structure, the amendment process is deliberately designed to be challenging to ensure that any changes have a significant impact and are in the best interests of the nation as a whole.
Other countries have also implemented safeguards to protect the fundamental principles of their constitutions. For instance, the Basic Law of Germany can only be amended by a law that expressly amends or supplements its text. The Constitution of France requires amendments to be passed by both houses and then approved by a simple majority in a referendum or a three-fifths majority of the two houses of parliament. These measures ensure that any changes to the basic structure of the constitution are carefully considered and widely supported.
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Limitations and unamendable subjects
The United States Constitution is considered the most challenging in the world to amend. The process of amending the Constitution is outlined in Article V, which sets forth procedures for proposing and ratifying amendments. Two methods are available for proposing amendments: the first requires a two-thirds majority vote in both the House of Representatives and the Senate, while the second involves a constitutional convention called for by two-thirds of the state legislatures. Notably, no amendment has ever been proposed through a constitutional convention.
Once an amendment is proposed, it must be ratified by three-fourths of the states (38 out of 50) to become part of the Constitution. The Archivist of the United States, who heads the National Archives and Records Administration (NARA), is responsible for administering the ratification process. While there is no specified time limit for ratification, amendments proposed since 1917 have included a deadline, set either in the amendment itself or the joint resolution transmitting it to the states. The validity of an amendment does not depend on the time between proposal and ratification.
Article V also shields certain subjects from amendment, making them unamendable. These include:
- The prohibition on amendments prior to 1808 affecting Congress's power to restrict the importation of slaves and levy certain taxes on land or slaves.
- The provision that no state, without its consent, shall be deprived of its equal suffrage in the Senate.
Scholars have debated the legal force of these unamendable subjects and the possibility of external, textual, or implicit limitations on amending the Constitution. For instance, there is discussion around whether the equal suffrage requirement could be removed in two steps, but this would still violate Article V's plain language.
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The role of the President
The President does not have a constitutional role in the amendment process. However, the President may be involved in a ceremonial capacity when an amendment is certified. For example, President Johnson signed the certifications for the 24th and 25th Amendments as a witness, and President Nixon witnessed the certification of the 26th Amendment.
The process of amending the Constitution is outlined in Article V, which grants Congress the authority to propose amendments with a two-thirds majority vote in both the House of Representatives and the Senate. This proposal is then ratified by three-fourths of the States (38 out of 50). The Archivist of the United States, who heads the National Archives and Records Administration (NARA), is responsible for administering the ratification process. The Archivist has delegated many duties associated with this function to the Director of the Federal Register.
While the President does not have a direct role in proposing or ratifying amendments, their presence as a witness during the certification ceremony adds a level of solemnity and significance to the process. It is important to note that the President's role is not constitutionally mandated but rather a tradition that has been followed in some cases.
In summary, while the President does not have a constitutional role in amending the Constitution, they may be involved as a ceremonial witness during the certification process. This involvement adds a symbolic dimension to the amendment process, reflecting the importance and finality of the changes made to the nation's foundational document.
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Historical context
The Constitution of the United States comprises an introductory paragraph, a list of seven Articles that define the government's framework, an untitled closing endorsement, and 27 amendments. The authority to amend the Constitution is derived from Article V, which outlines two methods for proposing amendments. The first method involves Congress proposing an amendment with a two-thirds majority vote in both the House of Representatives and the Senate. The second method is through a constitutional convention called for by two-thirds of the State legislatures.
Historically, the process of amending the Constitution has been influenced by various factors. Early state constitutions, such as the Mass Const. of 1780 and the Md. Const. of 1776, provided a framework for amending procedures. The Founding Fathers considered language that would allow states to amend the nation's charter without Congressional approval. The Constitutional Convention of 1787 aimed to address shortcomings in the nation's first charter, such as Congress's lack of authority to raise revenues through import duties.
The first several Constitutional amendments were proposed in 1789, with Amendments 1–10 collectively known as the Bill of Rights. These amendments guaranteed certain individual rights and freedoms. The Reconstruction Amendments (Amendments 13–15) were adopted between 1865 and 1870 following the American Civil War, addressing issues like slavery and voting rights. The Nineteenth Amendment, ratified in 1920, prohibited denying any citizen the right to vote based on sex.
The process of amending the Constitution has also been shaped by Supreme Court decisions and academic debates. The Supreme Court interprets the Constitution as the fundamental law within the states and plays a crucial role in ensuring government compliance with it. The Court's decisions, such as the Kesavananda Bharati Case in India, have established limits on the power to amend, asserting that the basic structure of a constitution cannot be altered. This "basic structure" encompasses principles like the supremacy of the Constitution, the rule of law, the independence of the judiciary, and the separation of powers.
In summary, the historical context of amending the basic structure of a constitution involves examining early state constitutions, the intentions of the Founding Fathers, significant amendments, and judicial interpretations. The process of amendment is designed to be deliberate and inclusive, ensuring that any changes made are in accordance with the principles and values established by the constitution.
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Frequently asked questions
No, the Supreme Court of India ruled in the Kesavananda Bharati case that the basic structure of the Constitution cannot be amended. The 'basic structure' includes the rule of law, the independence of the judiciary, secularism, and federalism, among other principles.
Yes, but it depends on the country. For example, the Basic Law of Germany, which serves as its constitution, can be amended, but only through a law that expressly amends or supplements its text. On the other hand, the Constitution of Brazil forbids amendments that intend to abolish individual rights or alter the fundamental framework of the State.
The authority to amend the US Constitution is derived from Article V of the Constitution. Amendments can be proposed by a two-thirds majority vote in both the House of Representatives and the Senate, or by a constitutional convention called for by two-thirds of the state legislatures. Once proposed, an amendment becomes part of the Constitution when it is ratified by three-fourths of the states (38 out of 50).
