Malcolm Rivera
A constitutional amendment is a modification of the constitution of a polity, organization or other type of entity. The process of amending a constitution varies across jurisdictions, with some requiring a bill to be passed in parliament, while others require a referendum or a combination of both. In the United States, for example, 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, in India, the power to initiate an amendment lies with the Parliament, and the amendment must be passed by a special majority in each house separately. The process of amending a constitution is generally difficult and time-consuming, as it often requires supermajorities or special procedures to ensure that any changes made are well-considered and have a broad consensus.
| Characteristics | Values |
|---|---|
| Difficulty of amending | The framers of the US Constitution made it difficult to amend the document. |
| Number of amendments | The US Constitution has been amended 27 times since 1787. |
| Nature of amendments | Amendments can be interwoven into the relevant sections of an existing constitution, directly altering the text, or appended to the constitution as supplemental additions (codicils), thus changing the frame of government without altering the existing text of the document. |
| Amendment proposal | 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. |
| Amendment ratification | A proposed amendment becomes part of the US Constitution as soon as it is ratified by three-fourths of the States (38 of 50 States). |
| Amendment process | In some jurisdictions, such as Ireland, Estonia, and Australia, constitutional amendments originate as bills and become laws in the form of acts of parliament. In the US, a proposed amendment originates as a special joint resolution of Congress that does not require the President's signature or approval. |
| Amendment recording | Amendments to a constitution take the form of revisions to the previous text, or they are appended to the end of the main text in the form of special articles of amendment, leaving the body of the original text intact. |
| Amendment timeline | Amendment proposals sent to the states for ratification have generally contained a seven-year ratification deadline. |
| Amendment initiator | In India, amendments can be initiated only by introducing a bill in either house of Parliament, and the bill must be passed in each house separately by a special majority. |
| Amendment limitations | The amending power of the Indian Parliament is limited by the doctrine of Basic Structure, which states that the 'Basic Structure of the Constitution' cannot be amended. |
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What You'll Learn
The process of proposing an amendment
Another option to propose an amendment is for two-thirds of state legislatures to ask Congress to call a Constitutional Convention. However, this has never happened. Once an amendment has been proposed, it is sent to the states for ratification and generally contains a seven-year ratification deadline. A proposed amendment becomes part of the Constitution once it is ratified by three-fourths of the states (38 out of 50).
In other jurisdictions, such as Ireland, Estonia, and Australia, constitutional amendments originate as bills and become laws through acts of parliament. In some cases, a referendum is required for final approval. In India, amendments can be initiated by introducing a bill in either house of Parliament, which must be passed by a two-thirds majority. If the bill seeks to amend the provisions of the constitution, it must be ratified by the legislatures of half of the states by a simple majority. After the bill is passed by both houses, it is presented to the President for assent.
In South Africa, at least 30 days before a constitutional amendment bill is introduced in the National Assembly, the person or committee introducing the amendment must publish it for public comment and submit it to the provincial legislatures. The amendment must then be passed by an absolute two-thirds supermajority in the National Assembly.
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Ratification process and requirements
The process of amending the United States Constitution is deliberately difficult and time-consuming. 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. The President does not have a constitutional role in the amendment process, and the joint resolution does not require their signature or approval. Instead, the original document is forwarded directly to the National Archives and Records Administration (NARA)'s Office of the Federal Register (OFR) for processing and publication.
Once an amendment has been proposed by Congress, the Archivist of the United States, who heads the NARA, is responsible for administering the ratification process. The Archivist has delegated many of the duties associated with this function to the Director of the Federal Register. The Director examines ratification documents for facial legal sufficiency and an authenticating signature. When a State ratifies a proposed amendment, it sends the Archivist an original or certified copy of the State action, which is immediately conveyed to the Director. The OFR retains these documents until an amendment is adopted or fails, and then transfers the records to the National Archives for preservation.
A proposed amendment becomes part of the Constitution as soon as it is ratified by three-fourths of the States (38 out of 50). The OFR then 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 and serves as official notice that the amendment process has been completed.
In some jurisdictions, such as Ireland, Estonia, and Australia, constitutional amendments originate as bills and become laws in the form of acts of parliament. In these jurisdictions, a special procedure is typically required to bring an amendment into force, such as approval in a referendum. In the United States, a proposed amendment takes the form of a special joint resolution of Congress.
In most jurisdictions, amendments to a constitution involve revisions to the previous text. This means that portions of the original text may be deleted or new articles inserted among existing ones. A less common method is for amendments to be appended to the end of the main text, leaving the body of the original text intact.
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The role of the Archivist 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 managing the constitutional amending process. This includes submitting amendments proposed by Congress to the states for ratification, collecting state ratifications, and certifying amendments as part of the Constitution once three-fourths of the states (38 out of 50) ratify them.
The Archivist played a crucial role in the certification of the 27th Amendment, which was first proposed in 1789 and ratified in 1992. Don W. Wilson, the Archivist of the United States at the time, became the first and only Archivist to certify a constitutional amendment. His actions were considered controversial due to the lengthy gap between the amendment's proposal and ratification.
The Archivist has delegated many of the ministerial duties associated with the amending process to the Director of the Federal Register. When a state ratifies a proposed amendment, it sends an original or certified copy of the state action to the Archivist, who immediately conveys it to the Director of the Federal Register. The Director examines ratification documents for facial legal sufficiency and an authenticating signature. If the documents are in order, the Director acknowledges receipt and maintains custody of them until an amendment is adopted or fails.
Once the Director verifies that the required number of authenticated ratification documents has been received, a formal proclamation is drafted 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 Director of the Federal Register signs the certification as a witness, and the signing ceremony has become a ceremonial event attended by dignitaries, including the President on some occasions.
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Amendments by popular initiative
Amending the United States Constitution is a challenging and time-consuming process. The framers of the Constitution made it difficult to amend the document to ensure its longevity. Since its drafting in 1787, there have been only 27 amendments, indicating the high bar for implementing changes.
One method for proposing amendments is through a popular initiative or referendum, known by various names such as Veto Referendum, Citizen Referendum, and People's Veto. This process allows citizens to propose and vote on constitutional amendments directly, bypassing the need for legislative referral. This form of direct democracy empowers citizens to drive changes to their state's constitution.
The process typically involves gathering a predetermined number of signatures to qualify a measure to be placed on a ballot, which is then voted on in an election. This method is often used at the state level, with 26 US states having initiative and/or veto referendum processes. The specific processes can vary from state to state, with different requirements for signature gathering and ballot qualification. For example, in California, citizens can propose laws and constitutional amendments through the ballot initiative process without the support of the Governor or the Legislature. They must write the text of the proposed law, submit it to the Attorney General for an official title and summary, and then gather enough signatures from registered voters to qualify for the ballot.
While the popular initiative process provides a pathway for citizens to initiate constitutional changes, it is important to note that amending the Constitution primarily falls under the authority of Congress and state legislatures. The Congress proposes amendments with a two-thirds majority vote in both the House of Representatives and the Senate, and the amendments are then ratified by three-fourths of the states (38 out of 50). This process ensures that any changes to the Constitution reflect the consensus of a significant majority across the nation.
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The Basic Structure of the Constitution (India-specific)
The Constitution of India is the supreme law of the land and, as such, must be able to adapt to changing needs and situations. The process of amending the Constitution is laid down in Part XX, Article 368, which grants constituent power to make formal amendments and empowers Parliament to amend the Constitution. This procedure ensures the sanctity of the Constitution and keeps a check on the arbitrary power of Parliament.
The process of amending the Constitution of India is a mixture of the British and US systems. It is more flexible than the US system, but not as flexible as the UK's, reflecting the desire of the constituent legislative assembly to establish a living document. The Indian Constitution is the most amended national constitution in the world, with 106 amendments since 1950. This is because the Constitution spells out governmental powers in such detail that many matters addressed by statute in other democracies must be addressed via constitutional amendment in India.
There are three types of amendments to the Constitution of India. The first type must be passed by a simple majority in each house of Parliament. The second type must be passed by a prescribed "special majority" of each house of Parliament. The third type must be passed by a "special majority" in each house of Parliament and ratified by at least half of the state legislatures. A bill for amendment can be introduced by a minister or private member and does not require the President's prior permission.
The Basic Structure of the Constitution is a set of core principles deemed essential and which cannot be destroyed or altered through amendments by Parliament. The amending power of Parliament is limited by the doctrine of Basic Structure, formulated by the Indian Judiciary on 24 April 1973, in the Keshavananda Bharati case, so that the 'Basic Structure of the Constitution' cannot be amended. The Supreme Court also held Article 368 as part of the Basic Structure.
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