Omar Bennett
The process of amending a constitution varies across jurisdictions. In some countries, such as Ireland, Estonia, and Australia, constitutional amendments originate as bills and become laws through acts of parliament and referendums. In the United States, on the other hand, a proposed amendment starts as a special joint resolution of Congress, bypassing the need for presidential approval or veto power. Amendments can take the form of revisions to the original text, resulting in deletions or insertions, or they can be appended as special articles, leaving the original text intact. The authority to amend the US Constitution is derived from Article V, which outlines the role of Congress and the Archivist of the United States in proposing and administering the ratification process. The process of amending a constitution is a complex and varied topic, with each country having its own unique procedures and requirements.
| Characteristics | Values |
|---|---|
| Number of Amendments to the US Constitution | 27 |
| First 10 Amendments | Bill of Rights |
| Date of Ratification of the Bill of Rights | December 15, 1791 |
| Authority to Amend the Constitution | Article V of the Constitution |
| Amendment Process | Proposed by Congress or a constitutional convention |
| Ratification Process Administrator | Archivist of the United States, National Archives and Records Administration (NARA) |
| Ratification Requirements | Ratified by three-fourths of the States (38 out of 50) |
| Amendment Form | Revisions to previous text or appendices to the main text |
| Example of Amendment Content | Freedom of speech, religion, press, assembly, and petition |
| Constitutional Amendment Differences | Vary across jurisdictions, e.g., Ireland, Estonia, Australia, and the United States |
| Austrian Constitution Amendments | Parliamentary legislation designated as "constitutional law" |
| Greek Constitution Amendments | Modified by referendum and proposal approved by lower and upper houses |
| Spanish Constitution Amendments | Procedures detailed in Articles 166 to 169 and Sections 71 to 76 |
| Swedish Constitution Amendments | Four fundamental laws, including Instrument of Government and Act of Succession |
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What You'll Learn
The US amendment process
The process of amending the US Constitution is a difficult and time-consuming endeavour. The authority to amend the Constitution is derived from Article V of the Constitution. The process involves proposing an amendment and subsequent ratification.
An amendment may be proposed by the Congress with a two-thirds majority vote in both the House of Representatives and the Senate. This is done through a joint resolution, which does not require the signature or approval of the President. Alternatively, an amendment can be proposed by a constitutional convention called for by two-thirds of the state legislatures. However, in practice, all amendments have originated in Congress.
Once an amendment is proposed, 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, and the States then formally submit the amendment to their State legislatures or call for a convention, as specified by Congress. For an amendment to become part of the Constitution, it must be ratified by three-fourths of the States (38 out of 50).
When the required number of authenticated ratification documents is received, the Office of the Federal Register (OFR) drafts a formal proclamation for the Archivist to certify that the amendment is valid. This certification is published in the Federal Register and U.S. Statutes at Large, serving as official notice that the amendment process is complete.
The amendment process in the United States is designed to be challenging, ensuring the longevity and stability of the Constitution.
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Ratification
The question of whether a sitting US president can be criminally charged and prosecuted has been a topic of much debate, with no clear constitutional amendment or section of law providing a definitive answer. The Office of Legal Counsel (OLC) in the Department of Justice holds the view that a sitting president cannot be indicted, prosecuted, or punished while in office, as this would effectively incapacitate the presidency. This belief stems from the idea that impeachment is the sole means of holding a sitting president accountable. However, others argue that the impeachment provisions do not explicitly bar criminal prosecutions of a sitting president.
The concept of presidential immunity further complicates the issue. While the Constitution does not explicitly grant civil or criminal immunity to the president, the Supreme Court has ruled that the president has absolute immunity for official acts under core constitutional powers and presumptive immunity for other official acts. The Court also outlined a three-part framework for evaluating a former president's immunity from criminal prosecution. This framework considers the exclusive sphere of constitutional authority, official acts, and the potential intrusion on the authority of the Executive Branch.
Despite these considerations, there have been instances where presidents have faced criminal investigations, such as Richard Nixon, Bill Clinton, and Donald Trump. In Trump v. United States, the Supreme Court addressed presidential immunity but left questions of immunity unresolved. It rejected the argument that impeachment is a prerequisite to criminal conviction, stating that it found no support in the Constitution's text or the structure of the US government. However, the Court has never directly addressed whether a sitting president can be criminally charged and prosecuted, as no such charges have ever been filed.
The lack of a clear constitutional amendment or section of law on this matter has resulted in ongoing debates and interpretations. While some argue that the president, as the head of government, should not be above the law, others emphasize the potential implications for the functioning of the presidency and the separation of powers. As of now, the question of whether a US president can be criminally charged and prosecuted while in office remains unresolved, with the Supreme Court's interpretations of presidential immunity shaping the legal landscape.
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International laws
The right to education is recognised in international law through various treaties, conventions, covenants, and charters. These legal instruments outline the obligations of states to respect, protect, and fulfil the right to education for their citizens. The Universal Declaration of Human Rights, adopted in 1948, proclaims in Article 26 that "everyone has the right to education". This fundamental principle has been further elaborated by the United Nations and other international organisations through several agreements.
One of the key international treaties is the International Covenant on Economic, Social and Cultural Rights, which guarantees the right to education for all people. This treaty outlines the obligation of states to "take steps toward" fully realising the right to education, using their maximum available resources. Additionally, the UNESCO Convention against Discrimination in Education ensures that no person shall be denied the right to education and prohibits any form of discrimination in education.
The Convention on the Rights of the Child also recognises the right to education for children, stating that it is relevant for those living in peaceful zones but even more crucial for those in conflict or emergency situations. This convention emphasises the duty of states to prevent and respond to attacks on educational institutions, ensuring the safety of students and their right to continue their education. Furthermore, the Convention on the Elimination of All Forms of Discrimination against Women requires states to ensure equality for girls in pre-school and primary education.
International humanitarian law, which regulates the conduct of parties in armed conflicts, also includes provisions on the right to education. The Geneva Conventions and their Additional Protocols protect students, teachers, and educational facilities during times of conflict. These protocols outline the principle of distinction, emphasising the protection of civilian persons and objects, including schools, from direct attacks. Additionally, in times of occupation, occupying powers are obligated to facilitate the functioning of educational institutions and ensure the provision of education.
While international law provides a framework for the right to education, its effectiveness in protecting pre-primary education has been questioned. However, various international and regional instruments, such as the Abidjan Principles on the Right to Education, developed by a committee of international human rights law experts, continue to advance and strengthen the protection of this fundamental right.
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Special joint resolution
A joint resolution is one of two methods to propose amendments to the U.S. Constitution. The other method is through a Constitutional Convention. A joint resolution is introduced simultaneously in the House of Representatives and the Senate. Once introduced, they must be approved in identical forms by both chambers. If any changes are made in one chamber, the identical change must be made in the other. Once a joint resolution is approved by both chambers, it becomes law through the signature of the president, or by Congress overriding a presidential veto.
However, when a joint resolution proposes an amendment to the Constitution, it does not receive presidential signatures. Instead, such a joint resolution is sent directly to the Archivist of the United States, who heads the National Archives and Records Administration (NARA), for submission to the several states for ratification. The Archivist has delegated many of the duties associated with this function to the Director of the Federal Register.
A proposed amendment becomes part of the Constitution as soon as it is ratified by three-fourths of the States (38 out of 50 States). When the Director of the Federal Register 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 and serves as official notice to the Congress and the Nation that the amendment process has been completed.
In modern practice, joint resolutions are used for purposes such as continuing resolutions, creating temporary commissions or other ad hoc bodies, and creating temporary exceptions to existing law.
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Revision methods
A constitutional amendment is a modification of the constitution of a polity, organisation, or other type of entity. 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 of amending a constitution varies from country to country. For example, in the United States, the authority to amend the Constitution comes from Article V of the Constitution. The amendment process is initiated by Congress, which proposes an amendment with a two-thirds majority vote in both the House of Representatives and the Senate. The proposed amendment is then sent to the states for ratification, where it must be approved by three-fourths of the states (38 out of 50) to become part of the Constitution.
In Finland, amendments or revisions to the Constitution can be proposed by the Government or any member of Parliament. These proposals must first be approved by a majority of Parliament and then, after a parliamentary election, by a two-thirds supermajority. A proposal can be fast-tracked by declaring it "urgent" with a five-sixths supermajority of Parliament, after which it can be approved by two-thirds immediately without an election.
The Netherlands has a similar process, where the legislature must first pass a law by a simple majority proposing to change the constitution. The lower house is then dissolved, and after elections, the proposal is considered again. To change the constitution, a two-thirds majority in both houses of parliament is required.
It's worth noting that some countries differentiate between constitutional amendments and constitutional revisions, with the latter referring to fundamental and holistic changes to a state's constitution. In these cases, a constitutional revision typically requires a state constitutional convention.
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Frequently asked questions
The authority to amend the Constitution of the United States is derived from Article V of the Constitution. An amendment may be proposed by Congress with a two-thirds majority vote in both the House of Representatives and the Senate. 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 Constitution of Greece can be amended through the terms mentioned under Article 110, "Section II: Revision of the Constitution" of "Part Four: Special, Final, and Transitional Provisions". Amendments can be proposed by the lower and upper houses of the Oireachtas and must be approved by a simple majority in a referendum.
The Constitution of Spain can be amended by following the procedures detailed between Articles 166 to 169 under "Part X: Constitutional Amendment". Additional details are provided between Sections 71 to 76.
