Amendments: Absolute Or Not?

The Constitution is a country's foundational legal document, outlining the rules and principles that govern a nation. It is meant to be a stable framework, but it is not set in stone, and amendments can be made to adapt it to changing circumstances. The process of amending a constitution varies across nations and states, but it typically involves a proposal by a legislative body or a special convention, followed by ratification by a specified majority. While amendments are intended to safeguard citizens' rights, there are instances where they may be perceived as a threat to freedom. For example, in 2023, New Mexico Governor Michelle Lujan Grisham issued an emergency public health order, suspending the Second Amendment right to bear arms, which caused controversy. This example highlights the complex nature of constitutional amendments and the importance of upholding the rights and freedoms they are meant to protect.

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The process of amending the US Constitution

When Congress proposes an amendment, it must be approved by a two-thirds majority vote in both the House of Representatives and the Senate. This is known as a joint resolution. The resolution is then forwarded directly to the National Archives and Records Administration (NARA) for processing and publication. NARA's Office of the Federal Register (OFR) plays a crucial role in this process by adding legislative history notes to the joint resolution and publishing it in slip law format. The OFR also assembles an information package for the states, providing formal copies of the resolution.

For an amendment to become part of the Constitution, it must be ratified by three-fourths of the states (38 out of 50). Once the OFR verifies the required number of authenticated ratification documents, it drafts a formal proclamation for the Archivist to certify the amendment's validity. 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.

In some cases, amendments may also need to be approved by specific provincial legislatures, particularly if they affect a particular province or state. For example, in South Africa, certain amendments must be approved by an absolute three-quarters supermajority in the National Assembly and six of the provinces.

Additionally, there is the option of proposing amendments through a constitutional convention. This method involves calling for a convention to revise the Constitution, which must be approved by a supermajority vote. The convention method allows for direct voter participation in the amendment process.

Overall, the process of amending the US Constitution is deliberately rigorous and requires significant support at both the federal and state levels to ensure that any changes reflect the will of the people and uphold the foundational principles of the nation.

The Bill of Rights

The United States Bill of Rights, comprising the first ten amendments to the United States Constitution, was proposed following the 1787–88 debate over the ratification of the Constitution. The Bill of Rights was added to the Constitution to address the objections raised by Anti-Federalists and to limit government power. It was strongly influenced by the Virginia Declaration of Rights, written by George Mason, as well as English documents such as the Magna Carta, the Petition of Right, and the English Bill of Rights. James Madison, then a member of the U.S. House of Representatives, wrote the amendments to limit government power and protect individual liberties through the Constitution.

The first ten amendments to the Constitution safeguard freedoms like speech, religion, and the right to bear arms, while ensuring protections such as due process and trial by jury. The First Amendment, for example, prohibits Congress from making laws establishing religion or abridging freedom of speech. The Second Amendment safeguards the right of Americans to bear arms, which has been a subject of controversy, with some lawmakers attempting to suspend this right. The Third Amendment protects citizens' right to be free from the quartering of soldiers in their houses without consent. The Fourth Amendment guarantees citizens' right to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures.

The Ninth Amendment states that the enumeration of certain rights in the Constitution shall not deny or disparage other rights retained by the people. The Tenth Amendment reserves powers not delegated to the United States by the Constitution to the states or the people. These amendments were presented as a list of amendments that would follow Article VII of the Constitution. While Madison initially opposed the idea of creating a bill of rights, he eventually agreed to support it and served as its author.

The role of the National Council of Provinces (NCOP)

The National Council of Provinces (NCOP) is the upper house of the Parliament of South Africa. It came into existence with the adoption of the Constitution of South Africa in 1996 and replaced the Senate, which had been the second house of National Parliament since 1994. The NCOP provides provinces with a forum to engage with the national government on matters concerning areas of shared national and provincial legislative powers. It also oversees the programmes and activities of the national government relating to provincial and local government matters.

The NCOP consists of 90 delegates, with 10 delegates representing each of the nine provinces, regardless of the population of the province. Each province is equally represented in the NCOP, with each provincial delegation composed of six permanent delegates and four special delegates. The permanent delegates are appointed by the nine provincial legislatures, while the four special delegates include the Premier of the province and three other members selected from the provincial legislature.

The NCOP has the power to consider, amend, propose amendments to, or reject legislation. It must consider all national bills and can initiate legislation in areas where Parliament and the provincial legislatures have concurrent legislative power. There are four categories of bills that the NCOP processes according to the procedures prescribed by the Constitution:

• Bills amending the Constitution (Section 74)
• Bills not affecting provinces (Section 75)
• Bills affecting provinces (Section 76)
• Money bills (Section 77)

The NCOP plays a crucial role in facilitating public participation in the law-making process through programmes such as "Taking Parliament to the People" and Provincial Week. These initiatives enable the NCOP to engage directly with the public, especially in remote rural areas, and allow for effective oversight of the executive.

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State constitutions and their relation to the federal constitution

In the United States, each state has its own constitution, which is significantly longer than the US Constitution. State constitutions are detailed documents outlining the relationship between the government and the people, and they address a wide range of issues deemed important enough to be included in the constitution rather than in an ordinary statute. They are typically modelled after the federal Constitution, outlining the structure of the state government, establishing a bill of rights, and detailing the executive branch, legislature, and state courts.

State constitutions cannot conflict with the federal Constitution, but they can outline or clarify rights that go further than those in the federal Constitution, often providing additional protections. For example, the federal Constitution does not explicitly grant a right to vote, whereas state constitutions are explicit in granting this right. State constitutions have been used to provide important protections in the area of partisan gerrymandering, with free elections clauses being successfully invoked to strike down gerrymandered maps in several states.

The process for amending state constitutions varies. For example, there are two methods for proposing amendments to the New York Constitution: the legislative method, which requires approval by an absolute majority of the members of each of the two houses, and the convention method, which requires a majority vote of voters in a referendum. In California, there are three methods: by the legislature, by constitutional convention, or by voter initiative. All proposed amendments must be approved by a majority of voters.

The US Constitution has been amended 27 times, with the first 10 amendments, including the Second Amendment, being ratified in 1791. Amendments to the Constitution are not meant to be made lightly, as they were intended to remain absolute. However, there have been instances where the actions of lawmakers have conflicted with the Constitution. For example, in 2023, New Mexico Governor Michelle Lujan Grisham issued an "emergency public health" order, suspending the Second Amendment right to bear arms.

The right to bear arms

The Second Amendment of the United States Constitution states:

> "A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

The interpretation of this amendment has been a subject of considerable debate. The amendment's phrase "the right of the people to keep and bear Arms" has been interpreted by some as creating an individual constitutional right to possess firearms. This interpretation, known as the "individual right theory," suggests that legislative bodies are restricted from prohibiting firearm possession, or that such prohibition is at least presumptively unconstitutional.

However, others argue that the prefatory language "a well-regulated Militia" indicates that the Framers intended only to restrict Congress from legislating away a state's right to self-defense. This interpretation suggests that the Second Amendment does not confer an individual right to possess firearms unrelated to militia service.

The Supreme Court has weighed in on this debate, holding that the Second Amendment establishes an individual right for U.S. citizens to possess firearms. In United States v. Verdugo-Urquidez (1990), the Court referred to "the people" as "a class of persons who are part of a national community or who have otherwise developed a sufficient connection with this country to be considered part of that community." The Court has also clarified that the Second Amendment extends to all instruments that may constitute bearable arms, even those not in existence at the founding of the country.

In United States v. Miller (1939), the Court defined a militia as "all males physically capable of acting in concert for the common defense," indicating that the Second Amendment right is an individual one that belongs to all Americans. The Court has also ruled that the Second Amendment applies to the states through the incorporation doctrine of the Fourteenth Amendment, though there is disagreement among Justices as to which specific clause of the Fourteenth Amendment incorporates this right.

Despite the Supreme Court's rulings, the debate over the interpretation of the Second Amendment continues. Some states, such as Illinois, have enacted their own gun control laws, and the Court has acknowledged that firearm regulations are permissible if the weaponry in question cannot be used for law-abiding purposes. The Court has also suggested that regulations prohibiting criminals and the mentally ill from firearm possession would not implicate the Second Amendment.

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