Jonah Patel
The process of amending a written constitution varies across different jurisdictions. For instance, in the United States, the Constitution provides that an amendment 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 the state legislatures. On the other hand, countries like Ireland, Estonia, and Australia treat constitutional amendments as bills that become laws through acts of parliament and sometimes referendums. In Romania, the constitution outlines specific articles detailing the terms under which it can be amended, including Article 150: Amendment Initiative, Article 151: Amendment Procedure, and Article 152: Limits to Constitutional Amendments. The United Kingdom, devoid of a written constitution, vests the final authority on all quasi-constitutional matters in its parliament.
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What You'll Learn
The amendment process
Amending a written constitution is a complex process that varies across different jurisdictions. In the United States, the Constitution provides a detailed amendment process in Article V. A proposed amendment can originate as a joint resolution of Congress, which requires a two-thirds majority vote in both the House of Representatives and the Senate. Notably, the President does not have a constitutional role in this process, and the joint resolution does not require their signature or approval. Alternatively, a constitutional convention called for by two-thirds of the State legislatures can propose amendments. However, in practice, all amendments to the US Constitution have been proposed by Congress.
Once an amendment is proposed, it must be ratified. Ratification occurs when three-fourths of the States (38 out of 50) approve the amendment. The Archivist of the United States, who heads the National Archives and Records Administration (NARA), is responsible for administering the ratification process. The specific procedures followed by the Archivist are based on customs established by the Secretary of State and the Administrator of General Services before NARA assumed responsibility in 1985.
After ratification, the OFR (Office of the Federal Register) drafts a formal proclamation for the Archivist to certify that the amendment is valid and has become part of the Constitution. This certification is 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. The signing of this certification has become a ceremonial function attended by dignitaries, sometimes including the President.
Other countries, such as Ireland, Estonia, and Australia, have different processes for amending their constitutions. In these countries, constitutional amendments often originate as bills and become laws through acts of parliament, sometimes requiring approval through a referendum. For example, the Constitution of Romania outlines specific articles for "Amendment Initiative," "Amendment Procedure," and "Limits to Constitutional Amendments." Similarly, the Constitution of Russia allows for amendments under "Chapter 9: Constitutional Amendments and Revision of the Constitution." Each country establishes its own unique procedures and limitations for amending its written constitution.
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Article V of the US Constitution
The United States Constitution was crafted to be a durable document that would "endure for ages to come." Amending the Constitution is, therefore, a challenging process, as outlined in Article V of the Constitution. This article establishes two methods for proposing and ratifying amendments.
The first method involves Congress proposing an amendment with a two-thirds majority vote in both the House of Representatives and the Senate. This is the only method used so far to propose amendments. The amendment is then ratified when legislatures of three-fourths of the states (38 out of 50) approve it. Congress decides whether the states will ratify the amendment through their legislatures or special conventions. The President does not have a constitutional role in this process.
The second method, which has never been used, involves a constitutional convention called for by two-thirds of the state legislatures. This convention would propose amendments, which would then need to be ratified by either three-fourths of the state legislatures or conventions.
Since the Constitution was established in 1787, it has been amended 27 times, including the first ten amendments, known as the Bill of Rights, which safeguard individual rights from government interference. Amending the Constitution is intentionally challenging, ensuring that only significant changes affecting all Americans or securing citizens' rights are made.
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Ratification by states
The process of amending a written constitution is a challenging and lengthy endeavour. The United States Constitution, for instance, has only been amended 27 times since it was drafted in 1787. The framers of the Constitution intentionally made it a difficult task to ensure its longevity.
A proposed amendment must first be passed by a two-thirds majority vote in both houses of Congress. Following this, it must be ratified by the legislatures of at least three-fourths of the states (38 out of 50 states in the US). This is where the process of 'Ratification by States' comes into play.
When an amendment is proposed by Congress, the Archivist of the United States, who is in charge of the National Archives and Records Administration (NARA), is responsible for managing the ratification process. The Archivist communicates the proposed amendment to the states by sending a letter of notification to each state governor, along with informational material. The governors then submit the amendment to their respective state legislatures for consideration.
State legislatures have the power to act on a proposed amendment without waiting for official notification. When a state ratifies an amendment, it sends an original or certified copy of the state's action to the Archivist, who forwards it to the Director of the Federal Register for examination and custody. The Director verifies the facial legal sufficiency and the presence of an authenticating signature.
Once the required number of authenticated ratification documents is received by the Director of the Federal Register, a formal proclamation is drafted for the Archivist to certify. This certification confirms that the amendment is valid and has become an official part of the Constitution. The signing of this certification has become a ceremonial event witnessed by various dignitaries, including sometimes the President. The certification is then published in the Federal Register and U.S. Statutes at Large, serving as official notice to the nation that the amendment process is complete.
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Unamendable subjects
The United States Constitution was written "to endure for ages to come", as Chief Justice John Marshall wrote in the early 1800s. To ensure its longevity, the framers made it a challenging process to amend the document. As a result, the Constitution has been amended only 27 times since it was drafted in 1787, including the first 10 amendments, which were adopted four years later as the Bill of Rights.
The authority to amend the Constitution of the United States is derived from Article V of the Constitution. According to Article V, two sentences at the end of the Article make certain subjects unamendable. The first sentence prohibited amendments prior to 1808 that would have affected either of the following two subjects addressed in Article I, Section 9 of the Constitution:
- Limitations on Congress's power to prohibit or restrict the importation of slaves before 1808.
- Limitations on Congress's power to enact an unapportioned direct tax.
The second sentence of Article V, which remains in effect, prohibits amendments that would deprive states, without their consent, from having equal suffrage in the Senate. Scholars have debated whether the equal suffrage requirement could be removed in two steps:
- Amending the Constitution to repeal the limitation.
- Amending the document to alter equal suffrage.
However, a two-step process would still violate Article V's plain language, which states that a state cannot be deprived of equal suffrage without its consent.
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Examples of amendments in other countries
- United States of America: The US Constitution has 27 amendments, with 33 proposals sent to the states for ratification. The first 10 amendments, known as the Bill of Rights, were ratified on December 15, 1791. The 13th, 14th, and 15th amendments are collectively referred to as the Reconstruction Amendments. The Twenty-first Amendment, ratified in 1933, repealed the Eighteenth Amendment, which prohibited alcohol.
- Germany: The 1919 Weimar Constitution allowed laws that achieved supermajorities in both chambers of parliament to deviate from the constitution without becoming part of it. This was changed in the postwar 1949 constitution, which only allows amendments by explicitly altering the text.
- Ethiopia: Ethiopia's constitution can only be amended with a two-thirds majority of the country's regions and a two-thirds majority in a joint session of the Federal Parliamentary Assembly. Chapter Three, which covers human and democratic rights, and Articles 104 and 105 are almost impossible to amend, requiring total consensus from the federal regional states and two-thirds of each house of Parliament.
- European Union: The EU's constitutional basis is laid out in the Treaties of the European Union, which are international treaties between member states. Since 2009, the Treaty of Lisbon has outlined two procedures for treaty revision: ordinary revision, which requires an intergovernmental conference, and simplified revision, where the European Council unilaterally adopts decisions after consulting with other bodies.
- Albania: According to Article 177 of the Albanian Constitution, an amendment proposal must be made by at least one-fifth of the Assembly members. Amendments cannot be made when extraordinary measures are in effect. A two-thirds majority in the Assembly is required for approval, and they can decide to hold a referendum on the amendment, which must take place within 60 days of approval.
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Frequently asked questions
The United States Constitution derives its authority to amend 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 the state legislatures. Once an amendment is proposed, it becomes part of the Constitution as soon as it is ratified by three-fourths of the states (38 out of 50).
The Constitution of Romania outlines the terms by which it can be amended in "Article 150: Amendment Initiative", "Article 151: Amendment Procedure", and "Article 152: Limits to Constitutional Amendments".
The Russian Constitution can be amended in accordance with Articles 134 through 137 of "Chapter 9: Constitutional Amendments and Revision of the Constitution".
There are formal differences across jurisdictions in how constitutional amendments are drafted and written down once they become law. For example, in Ireland and Australia, amendments are drafted as Acts of Parliament but must also be approved in a referendum to become law.
The difficulty varies depending on the country and the specific constitutional provisions. Generally, amending a written constitution is a challenging task that requires a high threshold of support, such as a supermajority vote or a constitutional convention.
