Amending The Constitution: A Complex Process

The process of amending a constitution varies across different jurisdictions. In some countries, such as Ireland, Estonia, and Australia, constitutional amendments originate as bills and become law through acts of parliament, often requiring approval through a referendum. In the United States, amendments are 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. Amendments must then be ratified by three-fourths of the states to become part of the Constitution. The amendment process is designed to be challenging and time-consuming, ensuring that any changes have a significant impact and broad support.

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The amendment process

In the United States, the authority to amend the Constitution comes from Article V of the Constitution. There are two methods to propose amendments: through Congress or by a constitutional convention. For the former, a two-thirds majority vote is required in both the House of Representatives and the Senate. The latter method, which has never been used, would require two-thirds of state legislatures to call for a convention. A proposed amendment becomes an official Article of the Constitution once ratified by three-fourths of the States (38 out of 50). The Archivist of the United States, who heads the National Archives and Records Administration (NARA), is responsible for administering the ratification process. The amendment process can also vary at the state level, as seen in Tennessee, where amendments can be proposed through the legislature or by constitutional convention and must be approved by a majority of voters in a referendum.

In other countries, the process may differ. For example, in South Africa, a bill to amend the Constitution must be introduced in the National Assembly and cannot contain provisions unrelated to constitutional matters. It must be published for public comment and submitted to provincial legislatures at least 30 days before being introduced. All amendments must be passed by an absolute two-thirds supermajority in the National Assembly. In Bulgaria, a special amendment procedure is required to revise international borders, change the form of government, or suspend citizens' rights. This involves electing a Great National Assembly of 400 deputies, with amendments passed by a two-thirds majority in three successive readings.

Regardless of the specific process, amending a constitution is a significant undertaking that requires broad support and consensus. The varying procedures across different jurisdictions reflect the importance and complexity of making changes to a nation's foundational document.

Ratification deadlines

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 in the form of acts of parliament. In the United States, a proposed amendment originates as a special joint resolution of Congress that does not require the President's signature and cannot be vetoed.

Since the turn of the 20th century, amendment proposals sent to the states for ratification have typically included a seven-year ratification deadline. This deadline can be included in the body of the amendment or in the resolving clause of the joint resolution proposing it. While the Constitution does not explicitly mandate a deadline for state legislatures or state ratifying conventions to consider proposed amendments, the Supreme Court affirmed in Dillon v. Gloss (1921) that Congress has the authority to set such a deadline if desired. If an amendment with an attached deadline fails to be ratified by the required number of states within the specified time frame, it is deemed inoperative and moot.

The process of amending the Tennessee State Constitution illustrates the importance of ratification deadlines. Proposed amendments must undergo a rigorous process, including multiple readings and approvals, before being presented to voters in a referendum. However, there is no legal requirement for a specific ratification deadline in Tennessee.

In contrast, the Constitution of South Africa outlines specific procedures and requirements for amending its constitution. A bill proposing a constitutional amendment must be introduced in the National Assembly and published for public comment at least 30 days beforehand. While there is no explicit mention of a ratification deadline, the South African process emphasizes public engagement and deliberation before an amendment is officially proposed and voted on.

The absence of a universal ratification deadline in constitutional amendments allows for flexibility and adaptation to the unique circumstances of each jurisdiction. However, the presence of deadlines in certain cases ensures that the amendment process remains focused and timely, preventing indefinite delays or stagnation.

Special amendment procedures

The amendment process varies across different jurisdictions. In some countries, such as Ireland, Estonia, and Australia, constitutional amendments originate as bills and become laws in the form of acts of parliament. However, they may require approval through a referendum before becoming law.

In the United States, a proposed amendment originates as a special joint resolution of Congress, which does not require the President's signature or approval. Amendments must be passed by a two-thirds majority in both the House of Representatives and the Senate and then ratified by three-fourths of the state legislatures. This process is also known as the "Congressional Amendment Route".

The Constitution also provides for a "State-Led Amendment Route", where two-thirds of state legislatures can request that Congress call a constitutional convention to propose amendments. While this has never happened, it is another option for initiating the amendment process.

Some countries have specific procedures for certain types of amendments. For example, in Bulgaria, a special procedure is required to revise international borders, change the form of government, or suspend citizens' rights. This involves electing a Great National Assembly of 400 deputies, with amendments requiring a two-thirds majority in three successive readings.

In the Czech Republic, a constitutional act can only be passed with 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 President's signature to become law.

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The role of the President

The US Constitution does not establish a role for the President in amending the Constitution. The authority to amend the Constitution 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. The President does not have a constitutional role in the amendment process, and the joint resolution does not require their signature or approval.

However, some Presidents have played a ministerial role in transmitting Congress's proposed amendments to the states for potential ratification. For example, President George Washington sent the first twelve proposed amendments, including the ten proposals that later became the Bill of Rights, to the states for ratification after Congress approved them.

In the certification process, the OFR drafts a formal proclamation for the Archivist to certify that the amendment is valid and has become part of the Constitution. The 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 the certification has become a ceremonial function attended by various dignitaries, including the President. For example, President Johnson signed the certifications for the 24th and 25th Amendments as a witness, and President Nixon witnessed the certification of the 26th Amendment.

There are also Amendments that specifically address the Presidency. The Twelfth Amendment, ratified in 1804, outlines the procedure for electing Presidents and Vice Presidents, stipulating that they are elected together. The Twenty-second Amendment, ratified in 1951, establishes term limits for the Presidency, stating that no person shall be elected to the office of President more than twice.

State vs federal powers

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, often following a referendum. In contrast, the United States Constitution provides that an amendment may 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.

The amendment process is designed to be challenging and time-consuming, ensuring that only significant changes affecting all citizens or securing their rights are made. For instance, in the US, an amendment becomes part of the Constitution once ratified by three-fourths of the states (38 out of 50), with the Archivist of the United States administering the ratification process. This process is managed by the National Archives and Records Administration (NARA), which includes duties like adding legislative history notes and publishing the amendment in slip law format.

In the case of Tennessee, there are two methods for proposing amendments to the state constitution: through the legislature or by constitutional convention. For the legislative approach, the Tennessee General Assembly passes a resolution with specific wording, which must pass three separate readings on three separate days with an absolute majority. The proposed amendment then undergoes the same process after the legislative election before being put on the ballot in the next gubernatorial election.

Other countries have their own unique procedures. For example, in South Africa, a bill to amend the Constitution must be introduced in the National Assembly, published for public comment, and submitted to provincial legislatures. It then requires an absolute two-thirds supermajority in the National Assembly to pass. Bulgaria has a specific procedure for amending international borders, changing the form of government, or suspending citizens' rights, which involves electing a Great National Assembly of 400 deputies and passing amendments with a two-thirds majority in three successive readings.

These varying processes for amending constitutions reflect the different historical contexts, political systems, and cultural values of each jurisdiction, demonstrating the complexity and importance of constitutional amendments in shaping a nation's laws and principles.

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