Simone Lawson
A constitutional amendment is a modification of a constitution that directly alters the text or is appended as a supplemental addition. While most amendments are proposed and passed through special procedures, some amendments may directly contradict the constitution. The concept of an unconstitutional constitutional amendment is based on the idea that even a properly ratified amendment may conflict with a constitutional norm, value, or principle. For example, in 2015, the Supreme Court of Honduras declared a part of its original 1982 constitution unconstitutional due to its violation of the basic structure doctrine. Similarly, the Indian Supreme Court reversed its stance on unlimited constitutional amendment power in the 1960s and 1970s, adopting the basic structure doctrine.
| Characteristics | Values |
|---|---|
| Amendments can be interwoven into the relevant sections of an existing constitution | Directly altering the text |
| Amendments can be appended to the constitution as supplemental additions (codicils) | Changing the frame of government without altering the existing text of the document |
| Amendments must be enacted through a special procedure | More stringent than the process for passing ordinary legislation |
| Examples of special procedures | Supermajorities in the legislature |
| Direct approval by the electorate in a referendum | |
| A combination of two or more different special procedures | |
| A referendum to amend the constitution may also be triggered in some jurisdictions | Popular initiative |
| Amendments must be approved by every state | If they affect the equal representation of states in the Senate |
| Amendments can be banned | If they interfere with the domestic institutions of the state |
| Amendments must not contradict the principles embodied in the constitution | Only relate to modifications of particular provisions that do not alter the spirit of the constitution |
| Amendments can be passed by an Act of Parliament | Special procedures and requirements apply to the passage of constitutional amendments |
| A bill amending the Constitution must be introduced in the National Assembly | Cannot contain any provisions other than constitutional amendments and directly related matters |
| Constitutional amendments can be declared unconstitutional | If they violate the basic structure of the constitution |
| Unconstitutional amendments can conflict with constitutional norms, values, and/or principles |
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What You'll Learn
- Amendments can be interwoven into existing constitutions, directly altering the text
- Amendments can be appended to constitutions, changing the frame of government without altering existing text
- Amendments affecting equal state representation in the Senate must be approved by every state
- Amendments can be passed via supermajorities in the legislature or direct approval by the electorate in a referendum
- An amendment that transforms a constitution into something else would be unconstitutional
Amendments can be interwoven into existing constitutions, directly altering the text
A constitutional amendment is a modification of the constitution of a polity, organization, or other type of entity. Amendments can be interwoven into the relevant sections of an existing constitution, directly altering the text. For example, the Constitution of South Africa can be amended by an Act of Parliament, but special procedures and requirements apply to the passage of constitutional amendments. A constitutional amendment bill must be introduced in the National Assembly and published for public comment at least 30 days in advance. All amendments must be passed by an absolute two-thirds supermajority in the National Assembly, a common requirement for most amendments.
While amendments are typically proposed by Congress or a national constitutional convention, they must be ratified by three-quarters of state legislatures or state ratifying conventions. This process ensures that amendments are enacted through a special procedure that is more stringent than ordinary legislation. For instance, the United States Constitution requires a two-thirds supermajority vote in both the Senate and the House of Representatives or a majority vote of state delegations at a national convention.
In some cases, state legislatures have used their power to pressure Congress into proposing a desired amendment. This dynamic was observed in the movement to amend the Constitution to provide for the direct election of senators. While such proposals regularly passed the House of Representatives, they were often blocked in the Senate. Eventually, the Senate relented, and the Seventeenth Amendment was approved.
Despite the existence of stringent procedures, there have been instances where amendments or original constitutional provisions have been deemed unconstitutional. In 2015, the Supreme Court of Honduras declared a part of the original 1982 constitution, which imposed a one-term limit for the president, unconstitutional. Similarly, the Indian Supreme Court in the 1960s and 1970s adopted the basic structure doctrine, asserting that any constitutional amendment violating the Indian Constitution's basic structure should be deemed unconstitutional.
The concept of unconstitutional constitutional amendments has been explored by legal scholars such as Yaniv Roznai, who argues that even a properly ratified amendment can be unconstitutional if it conflicts with a constitutional norm, value, or principle. Adrienne Stone, reviewing Roznai's work, adds that amendments that transform a constitution into something other than a constitution, such as by eliminating the rule of law, would be unconstitutional. These discussions highlight the complexities and limitations inherent in the amendment process, underscoring the need for amendments to be carefully crafted and considered to ensure they are consistent with the spirit and principles of the constitution.
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Amendments can be appended to constitutions, changing the frame of government without altering existing text
A constitutional amendment is a modification of the constitution of a polity, organization, or other type of entity. Amendments can be woven into the relevant sections of an existing constitution, directly altering the text. However, they can also be appended to the constitution as supplemental additions (codicils), changing the government's framework without altering the existing text. This method is called the "doctrine of implied repeal." While the wording of the original text is unchanged, an article of amendment will take precedence over the provisions of the original text or an earlier amendment in the event of a conflict.
The United States Constitution, for example, has had 27 amendments appended to it as codicils. The use of appended articles of amendment is also a feature of the constitutions of Venezuela and Ethiopia, among others. In contrast, the 1949 German constitution explicitly rules out deviations from its terms after the Weimar Constitution's wide conception of "amendment" facilitated Hitler's rise to power.
Most constitutions require that amendments be enacted through a special procedure that is more stringent than the process for passing ordinary legislation. Examples of such special procedures include supermajorities in the legislature, direct approval by the electorate in a referendum, or a combination of two or more different special procedures. For instance, the Constitution of South Africa can be amended by an Act of Parliament, but special procedures and requirements apply, such as publishing the amendment for public comment at least 30 days before it is introduced in the National Assembly.
While amendments can be appended to constitutions without altering the existing text, the concept of an "unconstitutional constitutional amendment" has been proposed. This idea suggests that even a properly ratified amendment can be unconstitutional if it conflicts with a constitutional norm, value, or principle. For example, in 2015, the Supreme Court of Honduras declared a part of the original 1982 constitution unconstitutional because it created a one-term limit for the president and punished attempts to alter this limit.
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Amendments affecting equal state representation in the Senate must be approved by every state
The United States Constitution has a mechanism for amendments, which are modifications of the constitution itself. 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 (codicils), changing the frame of government without altering the existing text of the document. Most constitutions require that amendments be enacted through a special procedure that is more stringent than the process for passing ordinary legislation.
The Seventeenth Amendment, ratified in 1913, superseded Article I, Section 3, Clause 1, providing for Senators to be popularly elected rather than selected by state legislatures. The Seventeenth Amendment, therefore, affected equal state representation in the Senate by allowing voters to cast direct votes for U.S. senators. The Constitution, as it was adopted in 1788, made the Senate an assembly where the states would have equal representation. Each state legislature would elect two senators to six-year terms.
The Seventeenth Amendment was passed by Congress on May 13, 1912, and ratified on April 8, 1913. To become an operative part of the Constitution, an amendment, whether proposed by Congress or a national constitutional convention, must be ratified by either the legislatures of three-fourths (at present, 38) of the states or state ratifying conventions in three-fourths (at present, 38) of the states. Congress has specified the state legislature ratification method for all but one amendment.
The United States Constitution also specifies that any amendment affecting the equal representation of states in the Senate must be approved by every state. This provision ensures that any changes to the equal representation of states in the Senate have the unanimous consent of all the states. This requirement is an example of a special procedure that is more stringent than the process for passing ordinary legislation.
The concept of an "unconstitutional constitutional amendment" has been explored by legal scholars and courts. It refers to an amendment that, while properly passed and ratified, conflicts with a constitutional norm, value, or principle. For example, an amendment that transforms a constitution into some entity other than a constitution, such as by eliminating the rule of law, could be considered unconstitutional.
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Amendments can be passed via supermajorities in the legislature or direct approval by the electorate in a referendum
A constitutional amendment is a modification of the constitution of a polity, organization, or other type of entity. Amendments are often directly woven into the relevant sections of an existing constitution, directly altering the text. They can also be appended to the constitution as supplemental additions (codicils), changing the frame of government without altering the existing text of the document.
Most constitutions require that amendments be enacted through a special procedure that is more stringent than the process for passing ordinary legislation. Examples of such special procedures include supermajorities in the legislature, direct approval by the electorate in a referendum, or a combination of two or more different special procedures. A referendum to amend the constitution may also be triggered in some jurisdictions by popular initiative. For example, in the United States, the authority to amend the Constitution is derived from Article V of the Constitution. Amendments can be proposed by Congress with 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.
The Constitution of South Africa provides another illustration, where amendments can be made through an Act of Parliament, but special procedures and requirements apply. A bill amending the Constitution must be introduced in the National Assembly and must be passed by an absolute two-thirds supermajority. In the case of Australia, all amendments must first be passed by the legislature before being submitted to the people, and a majority of voters in a majority of states is required. Similarly, the Constitution of Denmark requires that an amendment be approved by parliament, followed by a general election, and then approved again by the new parliament before being submitted to a referendum.
While amendments can be passed via supermajorities in the legislature or direct approval by the electorate, it is important to note that there is a concept of "unconstitutional constitutional amendments." This concept suggests that even a properly passed and ratified amendment can be considered unconstitutional if it conflicts with a constitutional norm, value, or principle. For example, in 2015, the Supreme Court of Honduras declared a part of the original 1982 constitution unconstitutional due to its creation of a one-term limit for the president and protective provisions against altering this limit.
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An amendment that transforms a constitution into something else would be unconstitutional
The concept of an "unconstitutional constitutional amendment" refers to the idea that a properly ratified amendment can still be unconstitutional if it conflicts with the constitution's norms, values, and principles. This doctrine has been adopted by various courts and legal scholars throughout history, including Israeli legal academic Yaniv Roznai, who wrote the book "Unconstitutional Constitutional Amendments: The Limits of Amendment Powers".
In a 2018 review of Roznai's book, Adrienne Stone argues that an amendment that transforms a constitution into something else would be unconstitutional. For example, an amendment that eliminates the rule of law would render the concept of a constitution meaningless. However, Stone criticizes Roznai's claim that amendments that alter a constitution's identity but allow it to remain a constitution are unconstitutional. She argues that a constitution's extreme malleability, including its rejection of the unconstitutional constitutional amendment doctrine, can be considered part of its identity, making it improper for courts to alter.
The Indian Supreme Court has also played a significant role in shaping the understanding of unconstitutional amendments. In the 1960s and 1970s, the court articulated the basic structure doctrine, which states that an amendment violating the basic structure of the Indian Constitution should be declared unconstitutional. This was a notable shift from its previous stance in 1951, when it declared that the constitutional amendment power was unlimited.
It is worth noting that the process of amending a constitution varies. Most constitutions require special procedures, such as supermajorities in the legislature or direct approval by the electorate in a referendum. Some constitutions, like that of Norway, specifically state that amendments must not contradict the principles embodied in the constitution but only relate to modifications that do not alter its spirit.
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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 directly woven into the relevant sections of an existing constitution, altering the text.
In 2015, the Supreme Court of Honduras declared a part of the original 1982 constitution of Honduras unconstitutional. This part imposed a one-term limit for the president of Honduras and created protective provisions punishing attempts to alter this presidential term limit.
The doctrine of unconstitutional constitutional amendments suggests that even a properly passed and ratified constitutional amendment can be unconstitutional if it conflicts with a constitutional or extra-constitutional norm, value, and/or principle.
The doctrine was proposed by Israeli legal academic Yaniv Roznai in his 2017 book "Unconstitutional Constitutional Amendments: The Limits of Amendment Powers".
Adrienne Stone, in a 2018 review of Roznai's book, argues that the doctrine should only apply when an amendment transforms a constitution into something other than a constitution. She criticizes Roznai's claim that amendments that alter a constitution's identity while allowing it to remain a constitution are unconstitutional.
