Simone Lawson
A constitutional amendment is a formal process of modifying the constitution of a polity, organization, or other types of entities. The authority to amend the Constitution of the United States, for example, is derived from Article V of the Constitution. The process of amending the Constitution typically involves proposing an amendment, which may be done by a legislative body or a special convention, and then ratifying the amendment through a specified process, such as a vote or a referendum. In the United States, a proposed amendment originates as a special joint resolution of Congress that does not require the President's signature or approval. Once an amendment is ratified by three-fourths of the States (38 out of 50), it becomes part of the Constitution. The process of amending a constitution varies across different countries and is often more stringent than the process for passing ordinary legislation.
| Characteristics | Values |
|---|---|
| Authority to amend | Derived from Article V of the Constitution |
| Amendment proposal | 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 submission | Governors formally submit the amendment to their State legislatures or call for a convention, depending on Congress's specification |
| Ratification | A proposed amendment becomes part of the Constitution when ratified by three-fourths of the States (38 of 50 States) |
| Amendment form | Changes to the main text or appended as supplemental additions (codicils) |
| Amendment frequency | 27 amendments to the US Constitution, with none proposed by constitutional convention |
| Amendment restrictions | Some constitutions restrict amendments to protect state characteristics, such as democratic government or human rights |
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What You'll Learn
Amendments are modifications to the constitution
A constitutional amendment is a formal modification of a constitution. Amendments are often interwoven into the relevant sections of an existing constitution, directly altering the text. They can also be appended to the constitution as supplemental additions (codicils), changing the frame of government without altering the existing text of the document.
The process for amending a constitution varies. In the United States, for example, a proposed amendment originates as a special joint resolution of Congress that does not require the President's signature or approval. The original document is forwarded directly to the National Archives and Records Administration (NARA) 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. Once 38 of the 50 States have ratified the proposed amendment, it becomes part of the Constitution.
In other countries, such as Ireland and Australia, amendments are drafted in the form of Acts of Parliament but cannot become law until they have been approved in a referendum. The Constitution of Austria is also notably liberal in terms of constitutional amendments. Any piece of parliamentary legislation can be designated as "constitutional law" if the required supermajority and other formalities for an amendment are met.
Some constitutions use entrenched clauses to restrict the kind of amendment to which they may be subject. This is usually to protect characteristics of the state considered sacrosanct, such as the democratic form of government or the protection of human rights. Amendments are often forbidden during a state of emergency or martial law.
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They are proposed by Congress with a two-thirds majority
The process of amending the US Constitution is a formal procedure, originating with a proposal from Congress with a two-thirds majority in both the House of Representatives and the Senate. This proposal takes the form of a joint resolution, which does not require the President's signature or approval. The President, therefore, cannot veto the resolution. This is a crucial step in the process, as it ensures that any changes to the Constitution are not subject to the whims of a single individual but rather are supported by a substantial majority in Congress.
The two-thirds majority requirement in both chambers of Congress serves as a significant hurdle for any proposed amendment. This supermajority requirement is a common feature of amendment processes and is designed to ensure that any changes to the Constitution are carefully considered and broadly supported. It also helps to maintain the stability and integrity of the Constitution by preventing frequent or frivolous amendments.
Once the resolution has passed in Congress, it is forwarded directly to the National Archives and Records Administration's (NARA) Office of the Federal Register (OFR) for processing and publication. The OFR plays a crucial role in the amendment process, adding legislative history notes to the joint resolution and publishing it in slip law format. This office also assembles an information package for the states, providing them with formal copies of the joint resolution and related information.
The role of Congress in proposing amendments with a two-thirds majority is a critical aspect of the formal amendment process. It ensures that any changes to the Constitution are initiated through a rigorous and deliberative process, reflecting the importance and gravity of modifying the nation's foundational document. This step sets in motion a series of additional procedures, including ratification by the states, which will ultimately determine whether the proposed amendment becomes part of the Constitution.
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The Archivist of the US administers the ratification process
The process of amending the US Constitution is a formal and detailed procedure. The authority to amend the Constitution is derived from Article V of the Constitution. Congress proposes an amendment in the form of a joint resolution, which is then forwarded to NARA's Office of the Federal Register (OFR) for processing and publication. The OFR also prepares an information package for the States, which includes formal copies of the joint resolution and the statutory procedure for ratification.
The Archivist of the United States, who heads the National Archives and Records Administration (NARA), is responsible for administering the ratification process. The Archivist 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. When a State ratifies a proposed amendment, it sends the Archivist an original or certified copy of the State action, which is then conveyed to the Director of the Federal Register.
The OFR 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 an amendment is adopted, the OFR 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 serves as official notice to Congress and the Nation that the amendment process has been completed.
The Archivist's role in the ratification process is primarily administrative, ensuring that the constitutional amendment process is carried out in accordance with the law. The Archivist does not make any substantive determinations regarding the validity of State ratification actions. The current Archivist of the United States is Dr. Colleen Shogan, who was nominated by President Joe Biden and confirmed by the Senate in May 2023.
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Amendments are interwoven into relevant sections of the constitution
The process of amending the Constitution of a particular polity or organization is a formal and often intricate affair. The Constitution of the United States, for instance, has undergone 27 amendments, with the authority to amend derived from Article V of the Constitution. The process of proposing an amendment can occur through a two-thirds majority vote in both the House of Representatives and the Senate, or by a constitutional convention requested by two-thirds of the State legislatures. Notably, none of the 27 amendments have originated from a constitutional convention.
Once an amendment is proposed, it undergoes a ratification process overseen by the Archivist of the United States, who leads the National Archives and Records Administration (NARA). This process includes the examination of ratification documents for legal sufficiency and authenticating signatures. Amendments become part of the Constitution when ratified by three-quarters of the States (38 out of 50).
Amendments can be incorporated into a constitution in several ways. One common method is to interweave amendments into the relevant sections of the existing constitution, directly modifying the text. This approach ensures that the amended constitution remains cohesive and that the changes are seamlessly integrated into the original document.
In contrast, another method involves appending amendments as supplemental additions, known as codicils, to the end of the main text. This approach preserves the original text intact while adding new provisions that shape the government's framework. This method is less common but allows for changes to be implemented without altering the existing wording.
The manner in which amendments are recorded can vary, and some constitutions employ a combination of both methods. For instance, the Constitution of Austria is known for its liberal approach to amendments, allowing any parliamentary legislation to be designated as constitutional law if certain conditions are met. This flexibility has resulted in a large number of constitutional provisions spread across the legal system, a phenomenon referred to as "constitutional garbage."
On the other hand, some constitutions include entrenched clauses that restrict the types of amendments that can be made. These restrictions aim to safeguard fundamental aspects of the state, such as democratic governance or human rights protections. For example, Article 79 (3) of the German Basic Law prohibits modifications to the federal nature of the country and the abolition or alteration of specific articles pertaining to human rights and democracy.
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They can also be appended as supplemental additions
The process of amending the Constitution is a formal and well-defined procedure. In the United States, for instance, a proposed amendment originates as a special joint resolution of Congress, which does not require the President's signature or approval. This resolution is then forwarded to the National Archives and Records Administration (NARA) for processing and publication. Once an amendment is ratified by three-fourths of the States (38 out of 50), it becomes part of the Constitution.
Amendments to a constitution can take two main forms. The first, and most common, method is for amendments to be interwoven into the relevant sections of an existing constitution, directly altering the text. This involves deleting portions of the original text or inserting new articles among the existing ones.
However, amendments can also be appended as supplemental additions (codicils) to the end of the main text, leaving the original document unchanged. This less common approach allows for a change in the frame of government without altering the existing text of the constitution. For example, in Ireland and Australia, amendments are drafted as Acts of Parliament but must be approved in a referendum before becoming law.
The process of appending amendments as supplemental additions offers a way to adapt and update a constitution while preserving the original text. This method can be particularly useful when the core principles and values outlined in the original text need to be preserved while allowing for necessary changes to reflect evolving societal needs and perspectives.
While the majority of jurisdictions favour the first method of amending constitutions, the second approach of appending supplemental additions is a valid and important option that allows for flexibility and the preservation of the original text.
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Frequently asked questions
A constitutional amendment is a modification of the constitution of a polity, organization or other type of entity. Amendments can directly alter the text of the constitution or be appended to it as supplemental additions (codicils).
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 the State legislatures.
The Archivist of the United States administers the ratification process. Once an amendment is ratified by three-fourths of the States (38 out of 50), it becomes part of the Constitution.
The President does not have a constitutional role in the amendment process and cannot veto a proposed amendment.
Amendments can be interwoven into the relevant sections of the constitution, altering the text, or they can be appended to the end of the main text, leaving the original text intact.
