Amending A Flexible Constitution: A Dynamic Process

A flexible constitution is a type of constitution that can be easily amended or changed through ordinary legislative processes. This means that the government can alter constitutional principles and define new baselines for government action without needing special amending procedures. For example, the British Constitution is considered flexible as the UK Parliament can change the constitution through ordinary legislative processes. In contrast, a rigid constitution, like the US Constitution, can only be changed through special amending procedures. The US Constitution has been amended only 27 times since it was drafted in 1787, with amendments requiring a two-thirds majority vote in both the House of Representatives and the Senate, followed by ratification by three-fourths of the states. Other countries, such as South Africa, Ethiopia, and Australia, have their own unique processes for amending their constitutions, which may include acts of parliament, supermajority votes, or referendums. The ease of amending a flexible constitution allows for more adaptable governance but may also lead to frequent changes and less stability compared to a rigid constitution.

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The US Constitution is a rigid constitution

Amending the US Constitution requires a special procedure that is more stringent than the process for passing ordinary legislation. A proposed amendment must be passed 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. This is a challenging threshold to meet and has only been achieved a small number of times in US history.

Once a proposed amendment has passed Congress or been called for by a constitutional convention, it must be ratified by three-fourths of the states (38 out of 50) to become part of the Constitution. This step in the amendment process further underscores the rigidity of the US Constitution, as it requires broad consensus across a large number of states.

The amendment process is also time-consuming and can involve multiple steps, including the involvement of various dignitaries such as the President, the Archivist of the United States, and the Director of the Federal Register. The Archivist of the United States, who heads the National Archives and Records Administration (NARA), is responsible for administering the ratification process. The rigorous and time-consuming nature of the amendment process highlights the framers' intention to create a durable and stable constitution that is not easily changed.

While the rigidity of the US Constitution has ensured its stability and longevity, it has also faced criticism. Some argue that the difficulty of amending the Constitution can lead to dissatisfaction with the government and that political fixes do not necessarily belong in the Constitution. However, the framers' intention was to create a document that would endure and protect the rights of citizens, even if it meant that making changes would be challenging.

Amendments require a two-thirds majority vote in Congress

The process of amending a flexible constitution can be a challenging and time-consuming endeavour, as is the case with the United States Constitution. The US Constitution has been amended only 27 times since 1787, and any proposed amendment must meet stringent requirements to become part of this foundational document.

Amending the US Constitution: The Role of Congress

The US Constitution grants Congress the authority to initiate the amendment process under Article V. To propose an amendment, Congress requires a two-thirds majority vote in both the House of Representatives and the Senate. This means that two-thirds of the members present in each house must vote in favour of the proposed amendment, assuming a quorum is present. This method has been the exclusive approach for proposing amendments thus far, and it is important to note that the President does not have a constitutional role in this process.

The Joint Resolution Process

When an amendment is proposed by Congress, it takes the form of a joint resolution. This joint resolution is then forwarded directly to the National Archives and Records Administration's (NARA) Office of the Federal Register (OFR) for processing and publication. The OFR plays a crucial role in this process by adding legislative history notes to the joint resolution and publishing it in slip law format. Additionally, the OFR assembles an information package for the states, which includes formal "red-line" copies of the joint resolution and other relevant materials.

State Ratification: Finalising the Amendment Process

Once the proposed amendment has been processed and published by the OFR, it enters the state ratification phase. The proposed amendment is submitted to the states for their consideration, with each governor receiving a letter of notification along with the informational material prepared by the OFR. The governors then formally submit the amendment to their respective state legislatures. For an amendment to become part of the Constitution, it must be ratified by three-fourths of the states (38 out of 50 states). This process underscores the critical role played by Congress in initiating amendments, followed by the collaborative effort of the states in finalising the amendment process.

Amendments are ratified by three-fourths of the states

A flexible constitution is one that can be easily amended or changed through ordinary legislative processes. Unlike a rigid constitution, such as the US Constitution, a flexible constitution does not require special amending procedures. The UK, for example, has a flexible constitution as its Parliament can change the constitution through ordinary legislative processes.

In the case of the US Constitution, the process of amendment is arduous and time-consuming. A proposed amendment must be passed by two-thirds of both houses of Congress, and then it must be ratified by three-fourths of the state legislatures. This means that out of the 50 states, 38 must approve the amendment for it to be ratified. The process of ratification is overseen by the Archivist of the United States, who heads the National Archives and Records Administration (NARA). The Archivist, along with the Director of the Federal Register, follows established procedures and customs, previously performed by the Secretary of State and the Administrator of General Services.

Once the OFR (Office of the Federal Register) verifies that it has received the required number of authenticated ratification documents, it drafts a formal proclamation for the Archivist to certify that the amendment is valid and has become part of the Constitution. This certification is then published in the Federal Register and U.S. Statutes at Large, serving as official notice to Congress and the nation that the amendment process is complete. This certification has, in recent times, become a ceremonial function attended by dignitaries, including the President on some occasions.

The process of amending a flexible constitution, as demonstrated by the example of the US Constitution, involves a rigorous procedure of proposal, ratification, and certification. While the specifics may vary for different constitutions, the key aspect of a flexible constitution is the ability to make changes through ordinary legislative processes without the need for special amending procedures.

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Amendments can be appended without altering existing text

A constitutional amendment is a modification of the constitution of a polity, organization, or other type of entity. 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 (codicils). This leaves the original text intact, but still changes the frame of government.

The United States Constitution, for example, has had 27 amendments appended as codicils. In the US, the authority to amend the Constitution is derived from Article V of the Constitution. Amendments may 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 state legislatures. Once an amendment is proposed, the Archivist of the United States administers the ratification process. An amendment becomes part of the Constitution as soon as it is ratified by three-fourths of the states.

The Constitution of South Africa, by contrast, can be amended by an Act of Parliament, but special procedures and requirements apply to the passage of constitutional amendments. A bill amending the Constitution must be introduced in the National Assembly and cannot contain any provisions other than constitutional amendments and directly related matters. If an amendment affects a specific province, it must also be approved by the legislature of the province concerned.

The 1919 German Weimar Constitution allowed for any law reaching the necessary supermajorities in both chambers of parliament to deviate from the terms of the constitution without becoming part of the constitution. This very wide conception of "amendment" was ruled out in the postwar 1949 constitution, which only allows amendments by explicitly changing the constitution's text.

Some constitutions require supermajorities in the legislature

A supermajority is a requirement for a proposal to gain a specified level of support which is greater than the threshold of one-half used for a simple majority, sometimes expressed as a "50%+1 vote". Amendments to the Constitution may be proposed in one of two ways: a two-thirds supermajority vote of each body of the United States Congress, or a convention called by Congress on application of two-thirds (34) of the states. Once proposed, the amendment must be ratified by three-quarters (38) of the states.

Many state constitutions allow or require amendments to their constitutions to be proposed by supermajorities of the state legislature; these amendments must usually be approved by the voters at one or more subsequent elections. For instance, Michigan allows the Legislature to propose an amendment to the Michigan Constitution; it must then be ratified by the voters at the next general election. Some constitutions require supermajorities in multiple legislative chambers. For example, the Constitution of Ethiopia 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.

In South Africa, amendments affecting the role of the National Council of Provinces (NCOP), the "boundaries, powers, functions or institutions" of the provinces, or provisions "dealing specifically with provincial matters" must be passed by the NCOP with a supermajority of at least six of the nine provinces. Amendments to the Bill of Rights must also be passed by the NCOP with a supermajority of at least six provinces. If an amendment affects a specific province, it must also be approved by the legislature of that province.

In the United States, the Rome Statute of the International Criminal Court requires a seven-eighths majority of participating states to be amended. In some states, supermajorities are required for the passage of a statutory initiative or to increase taxes.

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