Isabella Carter
A constitutional amendment is a modification of the constitution of a polity, organization, or other type of entity. Amendments can be interwoven into the relevant sections of an existing constitution, directly altering the text, or they can be appended to the constitution as supplemental additions (codicils), changing the frame of government without altering the existing text of the document. Most constitutions require that amendments be enacted through a special procedure that is more stringent than the process for passing ordinary legislation. For example, in the United States, an amendment must be ratified by three-fourths of the states (38 states since 1959) by either the legislatures of three-fourths of the states or state ratifying conventions in three-fourths of the states. In Bulgaria, a special amendment procedure (Articles 157–163) is the only way to revise international borders, change the form of government, change the application of the Constitution and international treaties, or suspend citizens' rights.
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What You'll Learn
Ratification by three-fourths of state legislatures
The process of constitutional amendment in the United States is a complex and meticulous endeavour. Amendments are modifications to the Constitution, carefully woven into existing sections or appended as supplementary additions. They play a crucial role in shaping the nation's laws and governance.
The Twenty-first Amendment, ratified in 1933, stands as a unique case study in the history of US constitutional amendments. It serves as the sole instance where an amendment was ratified through the approval of three-fourths of state legislatures. This amendment holds historical significance as it repealed the Eighteenth Amendment, which had established the prohibition of alcohol.
To delve further into the intricacies of the ratification process, it is important to acknowledge the role of Congress in setting ratification deadlines. On several occasions since the early 20th century, Congress has stipulated that an amendment must be ratified within seven years of its submission to the states. This authority was affirmed by the Supreme Court in 1939 through the Coleman v. Miller case. Without a specified deadline, an amendment proposal can remain pending indefinitely, even after being proposed to the states.
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Ratification by state convention
The process of ratification by state convention is more complicated than the legislature ratification method. It involves the following steps:
- Congress proposes an amendment.
- The governor of each state formally submits the amendment to their state legislature or calls for a convention, depending on what Congress has specified.
- In the case of a convention, an election of delegates is announced by the governor, with the latest date possible being the next general election held at least three months after the amendment is proposed.
- The convention is convened to consider the pro and con arguments of the proposed amendment.
- The proposed amendment is ratified by state conventions in three-fourths of the states (38 out of 50 states).
It is important to note that the convention method of ratification has only been used once, during the 1933 ratification process of the 21st Amendment, which repealed the 18th Amendment, ending the prohibition of alcohol.
Some concerns have been raised about the potential for an Article V convention to become a "runaway convention" that exceeds its scope. However, proponents argue that the United States' experience with state constitutional conventions demonstrates that this is unlikely, as over 600 state constitutional conventions have been held with little evidence of scope creep.
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Special amendment procedures
A constitutional amendment is a modification of an existing constitution, directly altering the text. Amendments often require special procedures that are more stringent than those for passing ordinary legislation.
Similarly, in the Czech Republic, a passage of a constitutional act requires the agreement of three-fifths of all Deputies and Senators present when the proposed act is laid before each house of Parliament. This type of legislation does not require the signature of the President to become law.
In the United States, an amendment must be ratified by three-fourths of the states (38 since 1959) by either the legislatures of three-fourths of the states or state ratifying conventions in three-fourths of the states. The Twenty-first Amendment, ratified in 1933, is the only amendment to be ratified through this method. It repealed the Eighteenth Amendment, which established the prohibition of alcohol. Congress has enacted statutes governing the constitutional amendment process, and it can stipulate a ratification deadline for amendments, as affirmed in 1939 by the Supreme Court of the United States in Coleman v. Miller.
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Referendums
The referendum for constitutional ratification was first used in Massachusetts in 1778, while the optional referendum was first used in the Swiss canton of Sankt Gallen in 1831. The obligatory referendum on amendments to state constitutions proposed by state legislatures was first adopted by Connecticut in 1818 and has become the standard method for amending state constitutions in the US. The Swiss experience with direct legislation influenced the adoption of the optional referendum in US states and municipalities.
In some cases, referendums are required for specific purposes. For example, some states mandate referendums on bond issues, while local governments may require them for bond issues, tax questions, and related matters. Additionally, post-World War II constitutions of France and Italy made popular referendums obligatory for constitutional amendments, and referendums are compulsory for all constitutional changes in Ireland and Australia.
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Congressional deadlines
The text of Article V does not specifically address whether Congress may place a deadline on the states' ratification of a proposed amendment. However, in Dillon v. Gloss, the Supreme Court held that the Constitution implicitly authorises Congress to "fix a definite period" for ratification. The Court upheld Congress's specification of a seven-year time limit on the ratification of the Eighteenth Amendment, which established Prohibition.
The Court determined that Congress's power to determine the mode of ratification (by state legislatures or state ratifying conventions) implied the authority to specify a deadline. As a practical matter, a definite period for ratification ensures that states understand how much time they have to ratify.
In 1978, Congress extended the original deadline for the Equal Rights Amendment by three years, three months, and eight days. Proponents of the amendment argued that fixing and extending the deadline were powers exclusively granted to Congress under the political question doctrine.
However, subsequent commentators have disagreed, arguing that the Constitution gives Congress no such role. In 2020, the Office of Legal Counsel (OLC) advised that Congress lacks the authority to extend the ratification deadline for an amendment or revive an amendment after the initial deadline without restarting the Article V process. According to the OLC, in the absence of a congressionally proposed deadline, an amendment remains pending before the states, as states would not know whether they could still ratify it.
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