Malcolm Rivera
A constitutional amendment is a modification of the constitution of a polity, organization, or other type of entity. Most constitutions require that amendments be enacted through a special procedure that is more stringent than the process for passing ordinary legislation. An amendment with an attached deadline that is not ratified by the required number of states within the set time period is considered inoperative and rendered moot. While amendments are often interwoven into the relevant sections of an existing constitution, directly altering the text, they can also be appended to the constitution as supplemental additions, changing the frame of government without altering the existing text of the document. The concept of an unconstitutional constitutional amendment refers to the idea that even a properly ratified amendment may be deemed unconstitutional if it conflicts with a constitutional norm, value, or principle.
| Characteristics | Values |
|---|---|
| Amendments must not contradict the principles embodied in the constitution | Article 121 of the Constitution of Norway |
| Amendments must not change legislative representation | Section 284 of Article 18 of the Alabama State Constitution |
| Amendments must respect a list of items in the constitution | Part 4, Section, Article 288 of the Constitution of Portugal |
| No amendment can destroy the basic structure of the constitution | The Constitution of India |
| Amendments cannot abolish individual rights or alter the fundamental framework of the state | Article 60 of the 1988 Constitution of Brazil |
| Amendments must be passed by the legislature before being submitted to the people | Constitutions of Australia and Ireland |
| Amendments must meet a complex set of criteria | Constitutions of Australia and Switzerland |
| Amendments must be enacted through a special procedure | Most constitutions |
| Amendments must be approved by a simple majority of those voting at the electorate | Constitution of Ireland |
| Amendments must have a seven-year ratification deadline | Amendment proposals in the United States |
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What You'll Learn
Unconstitutional constitutional amendments
The concept of an "unconstitutional constitutional amendment" is based on the idea that even a properly ratified amendment may still be unconstitutional if it conflicts with a constitution's norms, values, and principles. While no amendment to the US Constitution has ever been ruled unconstitutional by a court, legal scholars have debated the idea. For example, US law professor Richard George Wright argues that an amendment that "renders a constitution unrecognisable" cannot be valid. Similarly, US law professor Mike Rappaport criticises the unconstitutional constitutional amendment doctrine, arguing that its adoption would undermine popular sovereignty by giving the US Supreme Court too much power.
Some constitutions contain explicit limitations on amendments. For example, Article 121 of the Constitution of Norway states that amendments must not "contradict the principles embodied in this Constitution". The Constitution of Brazil forbids amendments that intend to abolish individual rights or alter the fundamental framework of the State. The Constitution of India also protects against amendments that would destroy its basic structure.
In contrast, the codified US Constitution sets high standards for amendments but places few limits on their content. The ability and willingness of the US Supreme Court to overturn any constitutional amendment are questionable. While the US Supreme Court has affirmed its power to provide a deadline for ratification, it has never ruled an amendment unconstitutional.
The special procedures for amending constitutions vary across jurisdictions. Some constitutions, like those of Australia, Ireland, and Switzerland, require amendments to be first passed by the legislature before being submitted to the people. Other constitutions, like that of the former US state of Alabama, have been amended frequently, with 977 amendments between 1901 and 2022.
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Limits on state power
The US Constitution imposes several limits on federal power, aiming to preserve individual liberty and prevent government overreach. The Legislative Vesting Clause, for instance, marks a departure from British parliamentary supremacy by providing external limitations on congressional power. The Constitution enumerates the powers of the legislature, and any acts that contravene it are deemed void.
The Constitution also grants the President qualified veto power over legislation, acting as another check on congressional power. This was affirmed in the 1921 case of Dillon v. Gloss, where the Supreme Court ruled that Congress could impose a deadline for ratification.
To amend the Constitution, most jurisdictions require special procedures that are more stringent than those for ordinary legislation. This can include supermajorities in the legislature, direct approval by the electorate in a referendum, or a combination of both. For example, Australia and Ireland require amendments to first pass through the legislature before being submitted to the people, with Ireland requiring a simple majority and Australia mandating a more complex set of criteria.
However, it's worth noting that the effectiveness of purported entrenchment clauses, which aim to restrict legislative power, can be questionable. For instance, the Scotland Act 2016 proclaimed that Scotland's devolved government could not be abolished except by referendum. Still, legal commentators suggest that the UK Parliament could technically set aside this requirement with a simple majority.
While there are no explicit examples of amendments contradicting the US Constitution, other countries' constitutions provide insight. For instance, the Constitution of Norway stipulates that amendments must not contradict its underlying principles but only modify specific provisions. Similarly, the Supreme Court of India ruled that no amendment could destroy the basic structure of the Indian Constitution. These examples suggest that while amendments can introduce changes, they must respect the core tenets of the constitution they seek to alter.
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Entrenchment clauses
The effectiveness of entrenchment clauses, however, can vary. In some cases, they may be seen as mere expressions of hope or sentiment rather than enforceable restrictions. For example, the United Kingdom's Parliament, despite clauses in the Scotland Act 2016 proclaiming that Scotland's devolved government could not be abolished without a referendum, could theoretically set aside this requirement with a simple majority vote. This highlights the potential limitations of entrenchment clauses in preventing legislative changes.
The concept of "unconstitutional constitutional amendments" arises when an amendment contradicts or significantly alters the core principles and values of a constitution. Legal scholars and courts have debated the validity of such amendments, with some arguing that they should be deemed unconstitutional even if they have been properly ratified. For instance, United States law professor Richard George Wright suggests that an amendment abolishing a US state could be valid, but an amendment barring most political speech would be unconstitutional as it conflicts with the First Amendment and undermines the broader Constitution.
While the United States Constitution does not have explicit entrenchment clauses, it sets high standards for amendments while placing few limits on their content. The ability of the US Supreme Court to overturn a constitutional amendment is questionable, and no amendment has ever been ruled unconstitutional by a court. However, the Supreme Court has affirmed its power to set deadlines for ratification, rendering amendments without the required ratification moot.
In contrast, other countries' constitutions contain explicit restrictions on amendments. For example, Norway's Constitution states that amendments must not contradict the principles embodied in the Constitution but only relate to specific provisions without altering its spirit. Similarly, the Constitution of Brazil forbids amendments intending to abolish individual rights or alter the fundamental framework of the State. These examples demonstrate how entrenchment clauses can vary across different political systems.
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Popular sovereignty
In a democratic system, the principle of popular sovereignty is essential to ensuring that the government acts in the interests of the people and respects their fundamental rights. It allows the people to hold their government accountable and to shape the rules and principles that govern their society.
However, the concept of popular sovereignty in the amendment process can be complex and controversial. While it is generally accepted that constitutional amendments should go through a rigorous process of approval, the specific procedures and requirements can vary significantly across different political systems. For example, some countries, like Australia and Ireland, require that all amendments be first passed by the legislature before being submitted to a vote by the people. In other cases, amendments may require supermajority support in the legislature or approval through a referendum.
The idea of popular sovereignty in the amendment process has also been criticised. Some scholars, like United States law professor Mike Rappaport, argue that giving courts or judges the power to impose limits on the amendment process or to overturn amendments can undermine popular sovereignty. Rappaport suggests that this power could be used by courts to further their own agendas or to obstruct the will of the majority. For instance, the US Supreme Court could strike down a new amendment on the grounds that it conflicts with existing constitutional principles or rights, as in the case of potential conflicts with the First Amendment.
Ultimately, the question of whether an amendment contradicts a constitution is a complex one, involving legal, political, and philosophical considerations. While popular sovereignty suggests that the people should have the final say in the amendment process, the specific procedures and safeguards in place can vary widely and may include judicial review or other special procedures to ensure that amendments do not conflict with the fundamental principles or structure of the constitution.
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Human rights
The US Constitution, as originally written in 1787, did not adequately protect basic human rights, according to some critics. The Bill of Rights, comprising the first ten amendments, was ratified in 1791 to guarantee specific freedoms and rights. These include freedom of religion, speech, and the press, as well as the right to assemble, keep and bear arms, and protection from unreasonable search and seizure. The Ninth Amendment further states that the listing of specific rights in the Constitution does not deny other rights retained by the people but not explicitly mentioned.
The Fourteenth Amendment, passed in 1868, extended the liberties and rights granted by the Bill of Rights to formerly enslaved people. It also granted citizenship to "all persons born or naturalized in the United States." This amendment was part of the Reconstruction program following the Civil War, aiming to guarantee equal civil and legal rights to Black citizens.
The US Constitution has had 27 amendments, with the first ten being the Bill of Rights. These amendments were designed to limit government power and protect individual liberties, such as freedom of speech and religion, while also safeguarding state powers. The process of amending the Constitution involves proposing changes and then gaining ratification by a certain number of states.
The original Constitution proposed in 1787 had 12 amendments, but the first two were not adopted. The Tenth Amendment, part of the Bill of Rights, clarifies that the Federal Government only has the powers explicitly delegated to it by the Constitution. This amendment, along with the Ninth, emphasizes the importance of retaining certain rights and powers at the state level or with the people.
In summary, the US Constitution's amendments are designed to protect human rights, limit federal power, and ensure individual liberties. The Bill of Rights and subsequent amendments, such as the Fourteenth, have played a crucial role in extending rights to all citizens, including those previously marginalized or oppressed. The amendment process allows for the evolution of human rights protections in response to historical events and societal changes.
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Frequently asked questions
A constitutional amendment is a modification of the constitution of a polity, organization, or other type of entity. Amendments are often interwoven into the relevant sections of an existing constitution, directly altering the text.
An unconstitutional amendment is an amendment that is not explicitly prohibited by a constitution's text but is nevertheless unconstitutional due to conflicting constitutional or extra-constitutional norms, values, and/or principles.
While it is rare, it is possible for an amendment to contradict the constitution. For example, an amendment that abolishes one or more US states would be workable and valid, but an amendment barring most political speech would conflict with the First Amendment and render the rest of the Constitution meaningless.
