Isabella Carter
The process of amending a constitution is a complex and time-consuming endeavour that varies from country to country. For instance, in the United States, the Constitution has been amended only 27 times since it was drafted in 1787. Amendments can 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. A proposed amendment must then be ratified by three-fourths of state legislatures before it can become part of the Constitution. On the other hand, the Indian Constitution can be amended in three ways, including by a special majority of Parliament and ratification by half of the state legislatures. The Basic Structure Doctrine acts as a check on Parliament's amending power, preserving the Constitution's fundamental ethos, principles, and framework.
| Characteristics | Values |
|---|---|
| Difficulty | Very difficult and time-consuming |
| Number of amendments since 1787 | 27 |
| Number of proposed amendments | Many |
| Possibility | Possible, but difficult |
| Amendment proposal | Two-thirds majority vote in the House of Representatives and the Senate, or two-thirds of state legislatures requesting a Constitutional Convention |
| Amendment ratification | Three-fourths of state legislatures, or three-fourths of conventions |
| Amendment authority | Article V of the Constitution |
| Amendment administration | Archivist of the United States, who delegates duties to the Director of the Federal Register |
| Amendment process | Formal submission to state legislatures or calling for a convention, ratification, and certification |
| Amendment scope | Adaptability in governance, accommodating new rights, and federal structure changes |
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What You'll Learn
Amending the US Constitution: Article V
The United States Constitution was written "to endure for ages to come", as Chief Justice John Marshall wrote in the early 1800s. Amending the Constitution is a difficult and time-consuming process. The framers made it challenging to ensure the document's longevity. Since 1787, when the Constitution was drafted, it has only been amended 27 times, including the first ten amendments, known as the Bill of Rights, adopted four years later.
Article V of the US 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, allows for a constitutional convention to be called upon the request of two-thirds of the state legislatures.
Once an amendment is proposed, it must be ratified. There are two methods for ratification as well. The first method requires ratification by three-fourths of the state legislatures (38 out of 50 states). The second method involves conventions in three-fourths of the states. Congress determines the method of ratification and is not bound by any specific procedure outlined in Article V.
The Archivist of the United States, who heads the National Archives and Records Administration (NARA), is responsible for administering the ratification process. The Archivist works with the Director of the Federal Register, who adds legislative history notes to the proposed amendment and publishes it. Once the required number of authenticated ratification documents is received, a formal proclamation is drafted for the Archivist to certify the amendment's validity. This certification is published in the Federal Register and U.S. Statutes at Large, serving as official notice that the amendment process is complete.
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Two-thirds majority in Congress
The process of amending the Constitution is a difficult and time-consuming endeavour. The United States Constitution was written to "endure for ages to come", and as such, any amendments must be of significant importance and impact on the country and its citizens.
A two-thirds majority vote in both the House of Representatives and the Senate is required to propose an amendment to the Constitution. This is known as a supermajority, which is a vote of more than half of those present, expressed as a "50%+1 vote". This is a crucial step in the amendment process, as it ensures that any changes to the Constitution are carefully considered and have the support of a significant portion of Congress.
The two-thirds majority requirement helps to protect the rights of the minority and prevent hasty or impulsive changes to the Constitution. It also ensures that any amendments have broad support and consensus across the political spectrum. This is especially important for changes to constitutions with entrenched clauses, which are commonly subject to supermajority requirements.
Once an amendment is proposed by Congress, it is then forwarded to the National Archives and Records Administration (NARA) for processing and publication. The NARA's Office of the Federal Register (OFR) plays a crucial role in the amendment process, reviewing and publishing the proposed amendment, as well as providing information packages to the States.
The amendment process in the United States is deliberately challenging, and the two-thirds majority requirement in Congress is an essential step in ensuring that any changes to the Constitution are thoroughly vetted and have the support of a supermajority.
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Ratification by three-fourths of states
The process of amending the United States Constitution is a difficult and time-consuming endeavour. The Constitution has been amended only 27 times since it was drafted in 1787, indicating the rarity of successful amendments. The framers of the Constitution intentionally made it challenging to amend, ensuring its longevity and resilience.
For an amendment to be ratified by three-fourths of the states, also known as 38 out of 50 states, a specific process must be followed. Firstly, Congress proposes an amendment in the form of a joint resolution. This proposal requires a two-thirds majority vote in both the House of Representatives and the Senate. It is important to note that the President does not have a constitutional role in this process, and the joint resolution does not require their signature or approval.
Once the amendment is proposed by Congress, it is forwarded to the National Archives and Records Administration (NARA), specifically the Office of the Federal Register (OFR), for processing and publication. The OFR plays a crucial role in the amendment process. They add legislative history notes to the joint resolution and publish it in slip law format, creating an information package for the states.
The proposed amendment is then submitted to the state legislatures for consideration. Each state legislature must vote on the amendment, and for ratification, three-fourths of the states must approve it. When a state ratifies the amendment, it sends an original or certified copy of the state action to the Archivist of the United States, who is responsible for administering the ratification process. The Archivist delegates many of the duties to the Director of the Federal Register.
Once the OFR receives the required number of authenticated ratification documents, the Archivist certifies 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 event, often attended by dignitaries, including the President.
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Role of the Archivist
The process of amending the Constitution of the United States is a complex and lengthy procedure, and the Archivist of the United States plays a crucial role in this process. The Archivist, who heads the National Archives and Records Administration (NARA), is responsible for administering the ratification process under the provisions of 1 U.S.C. 106b.
The role of the Archivist in amending the Constitution can be summarised as follows:
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Receipt of State Action:
When a state ratifies a proposed amendment, the governor submits an original or certified copy of the state action to the Archivist. This copy is then immediately conveyed to the Director of the Federal Register.
Examination and Custody of Documents:
The Director of the Federal Register, in conjunction with the Office of the Federal Register (OFR), examines the ratification documents for facial legal sufficiency and the presence of an authenticating signature. If the documents are in order, the Director acknowledges receipt and maintains custody of them.
Retention and Transfer of Records:
The OFR retains the ratification documents until the amendment is either adopted or fails. At this point, the records are transferred to the National Archives for preservation.
Certification of Validity:
Once the OFR 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 a final and conclusive determination of the facial legal sufficiency of the ratification documents.
Publication of Certification:
The 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 has been completed.
Ceremonial Function:
In recent times, the signing of the certification has taken on a ceremonial aspect, with various dignitaries, including the President, sometimes attending the event.
The Archivist's role in amending the Constitution is, therefore, a vital one, ensuring the integrity and legality of the ratification process and providing official confirmation of any changes made to the nation's founding document.
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The Basic Structure of the Indian Constitution
The Indian Constitution is the supreme legal document of India and the world's longest written national constitution. It lays down the framework that demarcates the fundamental political code, structure, procedures, powers, and duties of government institutions, and sets out fundamental rights, directive principles, and the duties of citizens.
The Constitution of India vests constituent power upon the Parliament, subject to the special procedure laid down therein. The framers adopted a combination of the "theory of fundamental law", which underlies the written Constitution of the United States, with the \"theory of parliamentary sovereignty\" as existing in the United Kingdom. It is designed to be flexible and adaptable to changing conditions, with the ability to make changes to the nation's fundamental law or supreme law.
The Basic Structure Doctrine of the Indian Constitution refers to a set of core principles deemed essential, which cannot be destroyed or altered through amendments by Parliament. This concept, though not explicitly mentioned in the Constitution, was established by the Supreme Court in the landmark Kesavananda Bharati case in 1973. The Doctrine of Basic Structure is a check on the amending power of Parliament and ensures that the fundamental ethos, principles, and the underlying framework of the Constitution remain intact, preserving its spirit. The Supreme Court ruled that an amendment cannot destroy what it seeks to modify; it cannot tinker with the Constitution's basic structure or framework, which are immutable.
The Basic Structure Doctrine has been reaffirmed and applied in several cases, including Indira Nehru Gandhi v. Raj Narain, popularly known as the Election case, and Minerva Mills v. Union of India, where the Supreme Court used the doctrine to strike down parts of the 42nd Amendment. The doctrine has gained widespread legal and scholarly acceptance and is an important aspect of India's constitutional framework, ensuring the preservation of its core principles and values.
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Frequently asked questions
Yes, but it is a difficult and time-consuming process. The framers of the Constitution made it this way so that it would endure for ages to come.
The US Constitution can be amended in two ways. The first method requires both the House and Senate to propose a constitutional amendment by a two-thirds majority vote. The second method, which has never been used, is for two-thirds of the state legislatures to ask Congress to call a Constitutional Convention to propose amendments. Once an amendment is proposed, it must be ratified by three-fourths of the state legislatures.
The US Constitution has been amended 27 times since it was drafted in 1787. The first 10 amendments were adopted four years later as the Bill of Rights.
The Indian Constitution can be amended in three ways. The first way is by a simple majority of the Parliament, which is 50% of members present and voting. The second way is by a special majority of the Parliament, which is more than 50% of the total membership of the House and a majority of two-thirds of the members of that House present and voting, along with the consent of half of the state legislatures by a simple majority. The third way is by a special majority of the Parliament and the ratification of half of the state legislatures. It's important to note that the Basic Structure of the Indian Constitution, which includes a set of core principles, cannot be altered through amendments by Parliament.
