Jonah Patel
The process of amending a constitution varies across different countries. 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. However, in practice, all amendments have been proposed by Congress. Following proposal, an amendment becomes part of the Constitution once ratified by three-fourths of the states. In contrast, the Constitution of South Africa can be amended by an Act of Parliament, with specific procedures and requirements in place for the passage of constitutional amendments. Similarly, the procedure for amending the Constitution of Australia is outlined in Section 128 of the Constitution. Other methods of proposing amendments include the convention method, where the legislature submits to voters the question of calling a convention to revise the Constitution, and the initiative method, where an amendment is proposed by a petition signed by a certain percentage of voters.
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What You'll Learn
Two-thirds majority in Congress propose an amendment
The authority to amend the US Constitution is derived from Article V of the Constitution. The Constitution can be amended by Congress with a two-thirds majority vote in both the House of Representatives and the Senate. This is the only method for proposing amendments that has been used thus far. At least 11,000 proposals to amend the Constitution have been introduced in Congress, but they were not approved by the two-thirds majority in each house required for submission to the states for ratification.
The two-thirds majority vote in each house required for proposing an amendment is a vote of two-thirds of the members present, assuming the presence of a quorum, and not a vote of two-thirds of the entire membership, including those absent. This means that the two-thirds majority is calculated based on the number of members present during the vote rather than the total number of members in the House and Senate.
After Congress proposes an amendment with a two-thirds majority vote, the Archivist of the United States, who heads the National Archives and Records Administration (NARA), is responsible for administering the ratification process. The original document is forwarded to NARA's Office of the Federal Register (OFR) for processing and publication. The OFR adds legislative history notes to the joint resolution and publishes it in slip law format.
The OFR also assembles an information package for the states, which includes formal "red-line" copies of the joint resolution, copies of the resolution in slip law format, and other relevant information. The Archivist then submits the proposed amendment to the states for their consideration by sending a letter of notification to each governor, along with the informational material prepared by the OFR. Once a state ratifies a proposed amendment, it sends the Archivist an original or certified copy of the state's action, which is conveyed to the Director of the Federal Register.
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Two-thirds of state legislatures call for a convention
Article V of the U.S. Constitution outlines two methods for proposing amendments. The first method, which has been used for all 27 amendments, requires a two-thirds majority vote in both the House of Representatives and the Senate.
The second method, which has never been used, involves two-thirds of state legislatures applying for a convention to propose amendments. This method was designed to ensure that Congress would not block amendments favourable to the states. Once two-thirds of state legislatures have applied for a convention, Congress is obliged to call for one.
There is debate over whether the convention would be limited in scope to considering amendments on a particular matter, or whether it would be a general convention. There are also questions over how delegates to the convention would be chosen.
Once amendments have been proposed, they must be ratified by three-fourths of the states (38 out of 50) to become part of the Constitution.
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Act of Parliament
In India, Article 368 grants Parliament the power to amend the Constitution. This article outlines the procedure for exercising this power, which requires the approval of a two-thirds majority in Parliament. In some cases, the consent of half of India's states is also necessary.
The Basic Structure Doctrine, established in the Kesavananda Bharati v. State of Kerala (1973) case, places limits on Parliament's power to amend the Constitution. According to this doctrine, while Parliament can amend the Constitution, it cannot alter or destroy its fundamental structure or core principles. The doctrine ensures that the core values and principles that define the Constitution remain intact, even in the face of legislative changes.
The process of amending the Constitution through an Act of Parliament begins with the introduction of a Bill in either House of Parliament. This Bill must be passed by a majority of the total membership of that House and by a majority of no less than two-thirds of the members present and voting. Once passed by both Houses, the Bill is presented to the President for assent. Upon receiving the President's assent, the Constitution stands amended according to the terms of the Bill.
It is important to note that certain amendments may require additional ratification by the Legislatures of at least half of the States specified in Parts A and B of the First Schedule. This ensures that any changes made to the Constitution through an Act of Parliament are in line with the interests and consent of a significant portion of the country's states.
Additionally, Article 368 does not provide the substantive power to amend the Constitution but rather outlines the procedure for doing so. The word 'amend' in Article 368 refers to modifications to existing provisions rather than any major alterations. To amend Fundamental Rights, for example, a Constituent Assembly must be convened by Parliament.
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Petition signed by voters
In the United States, the process of amending a state constitution can vary across states. While some states like California require a two-thirds majority vote in each chamber of the state legislature to propose an amendment, others like Arkansas provide two mechanisms for amending the state constitution—a citizen-initiated process and a legislative process.
The citizen-initiated process, also known as an initiated constitutional amendment, is a citizen-led ballot measure to amend a state's constitution. Eighteen states, including Arkansas, Arizona, California, Florida, and Ohio, allow citizens to initiate constitutional amendments through petitions signed by voters.
In Arkansas, the number of signatures required for an initiated constitutional amendment is 10% of the votes cast in the previous gubernatorial election. Additionally, the petition must contain qualified signatures amounting to at least half of the required percentage of signatures (5%) from each of 50 of the state's 75 counties. A simple majority vote (50% plus 1) is then needed for voters to approve the constitutional amendment.
Arizona has a similar process, requiring signatures from 15% of the votes cast for governor in the most recent gubernatorial election. Petitions can be circulated for up to 24 months, and signatures must be submitted four months before the election. A simple majority is required for voter approval, although a 60% vote is needed for ballot measures to approve taxes.
California also allows citizens to initiate constitutional amendments. Petitioners must collect signatures amounting to 8% of the total votes cast for governor in the latest election to qualify a proposed amendment for the ballot. Once on the ballot, the amendment must be ratified by a simple majority of voters.
In Florida, a constitutional amendment can be proposed through an initiative petition with signatures from 15% of the total votes cast in the previous presidential election. The Florida Constitution Revision Commission can also refer constitutional amendments to the ballot. Amendments on the ballot must be approved by 60% of voters.
Ohio's process involves submitting a written petition signed by one thousand qualified electors, along with a proposed constitutional amendment, a title, and a summary, to the attorney general for examination. The attorney general reviews the title and summary to determine if they accurately represent the proposed amendment. If approved, a verified copy of the proposed amendment, along with its title, summary, and the attorney general's certification, is filed with the secretary of state.
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President signs certification
The process of amending the Constitution typically involves a proposal by Congress with a two-thirds majority vote in both the House of Representatives and the Senate, followed by ratification by three-fourths of the States. However, there have been instances where the President has played a ceremonial role in the process by signing the certification of amendments.
The authority to amend the Constitution of the United States stems from Article V of the Constitution. While the President does not have a constitutional role in the amendment process, their signature on the certification of amendments has occurred on a few occasions. This act carries symbolic significance and underlines the importance of the amendment being ratified.
Presidential signatures on amendment certifications began with President Johnson, who signed the certifications for the 24th and 25th Amendments as a witness. This precedent was followed by President Nixon, who witnessed the certification of the 26th Amendment, along with three young scholars in attendance. These acts of witnessing and signing the certifications by Presidents set a precedent for ceremonial involvement by the President in the amendment process.
The process of certification is a crucial step in finalising an amendment. 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. This certification confirms that the amendment is valid and has become an integral part of the Constitution. The Archivist's role in this process is significant, and their certification is considered final and conclusive.
While the President's signature on amendment certifications is not a constitutional requirement, it adds a ceremonial dimension to the process. It symbolises the unity of the executive branch with the legislative and judicial branches in recognising and honouring the ratified amendment. The presence of dignitaries and scholars during the signing ceremony further underscores the importance and solemnity of the occasion.
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Frequently asked questions
The US Constitution can be amended by a constitutional convention called for by two-thirds of the State legislatures. However, this method has never been used.
The Constitution of South Africa can be amended by an Act of Parliament, following special procedures and requirements.
The Constitution of India can be amended by a proposal from more than one-fifth of the deputies to the National People's Congress, followed by a majority vote of more than two-thirds of all the deputies to the Congress.
The New York Constitution can be amended by an initiative method, where an amendment is proposed by a petition signed by voters equal to 8% of the votes for all candidates for governor in the last gubernatorial election.
