Amending The Constitution: Understanding The Formal Process

The process of formally amending a constitution varies across jurisdictions. In some countries, such as the United States, a proposed amendment must be passed by a two-thirds majority in both houses of Congress and then ratified by three-fourths of the state legislatures. Other countries, like Ireland, Estonia, and Australia, require amendments to originate as bills and become laws through acts of parliament, sometimes with the additional requirement of a referendum. The Constitution of Austria is notably liberal regarding amendments, allowing any parliamentary legislation to be designated as constitutional law if certain conditions are met. In contrast, some constitutions contain entrenched clauses restricting the types of amendments permitted to protect fundamental characteristics of the state. The process of amending a constitution is generally challenging and time-consuming, reflecting the importance of these foundational documents in shaping a nation's laws and values.

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The amendment process

The process of formally amending the United States Constitution is a difficult and time-consuming endeavour. The framers of the Constitution made it challenging to amend the document to ensure its longevity. The authority to amend the Constitution is derived from Article V of the Constitution.

A proposed amendment must be passed by two-thirds of both houses of Congress (the House of Representatives and the Senate), and then ratified by three-fourths of the state legislatures. This can be achieved by the state calling for a convention, or the governor submitting the amendment to their state legislature. Once ratified, the amendment becomes part of the Constitution.

An alternative method of initiating the amendment process is for two-thirds of state legislatures to request that Congress call a Constitutional Convention. However, this has never occurred.

The President does not have a constitutional role in the amendment process, and a proposed amendment does not require their signature or approval. Instead, the Archivist of the United States, who heads the National Archives and Records Administration (NARA), is responsible for administering the ratification process. The Archivist has delegated many of the duties associated with this function to the Director of the Federal Register. Once the OFR (Office of the Federal Register) receives 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 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 Archivist's role

The Archivist of the United States, who heads the National Archives and Records Administration (NARA), is responsible for administering the ratification process when an amendment to the Constitution is proposed.

The Archivist receives original or certified copies of State actions when a State ratifies a proposed amendment. These are immediately conveyed to the Director of the Federal Register, who examines the documents for facial legal sufficiency and an authenticating signature. If the documents are in good order, the Director acknowledges receipt and maintains custody of them.

Ratification by states

The process of formally amending the Constitution involves several steps, one of which is ratification by the states. This is a critical stage in the amendment process, where the proposed amendment is submitted to the states for their approval. The procedure ensures that any changes to the Constitution reflect the will of the people in each state and guarantees widespread support for the amendment.

Each state has the option to hold a special convention to debate and vote on the proposed amendment. This process allows for a thorough examination of the amendment and enables citizens to express their opinions and influence the direction of the country. During the initial ratification of the Constitution, the debate was vigorous, with Federalists and Anti-Federalists expressing differing views.

The ratification process for amendments requires the approval of three-fourths of the states, which currently equates to 38 out of 50 states. Once a state ratifies a proposed amendment, it sends an original or certified copy of the state's action to the Archivist of the United States, who heads the National Archives and Records Administration (NARA). The Archivist, along with the Director of the Federal Register, oversees the ratification process, following established procedures and customs.

In the past, some states have taken swift action on proposed amendments without waiting for official notice. However, the Archivist's certification of the facial legal sufficiency of ratification documents is considered final and conclusive. The process concludes with the drafting of a formal proclamation, certifying that the amendment is valid and has become an integral 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 has been successfully completed.

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Constitutional convention

The process of formally amending the US Constitution is outlined in Article V of the Constitution. One of the two methods for proposing amendments specified in Article V is a constitutional convention, also known as an Article V Convention, state convention, or amendatory convention.

A constitutional convention can be called when two-thirds of state legislatures (34 out of 50) apply for one. This method has never been used; all 27 amendments to the Constitution have been proposed by a two-thirds majority vote in both houses of Congress. However, some scholars have speculated that states may pressure Congress to propose an amendment on a specific issue by applying for an Article V convention.

There is debate over the extent of states' power to determine the scope of an Article V convention. Some scholars argue that states can apply for a convention on a particular amendment text or group of subjects, thus limiting the convention to a specific subject matter. Others argue that the Constitution only provides for a general convention, not limited in scope. If a convention were to exceed its scope, none of the amendments it proposed would become part of the Constitution until they were ratified by three-fourths of the states (38 out of 50), which is more than the number of states required to call a convention.

In recent years, several states have called for a convention to propose amendments on issues such as gun control and term limits for Congress. However, some states have rescinded their applications to call for a convention. The Supreme Court has never directly interpreted the meaning of Article V, but it has referred to the Article V convention process in several cases.

International examples

The process of formally amending a constitution varies across different countries. Here are some international examples:

Australia and Ireland

In Australia and Ireland, constitutional amendments must first be passed by the legislature before being submitted to the people. In Ireland, a simple majority of voters is required, while in Australia, a more complex set of criteria must be met, including a majority of voters in a majority of states.

Switzerland

Switzerland has a procedure similar to Australia's, where proposed amendments must pass through the legislature before being submitted to the people.

Japan

Japan's constitution, adopted after World War II, includes a special portion known as "Article 9: Renunciation of War." This article reflects Japan's commitment to international peace and the renunciation of war as a means of settling disputes. However, no amendments have been passed in Japan over several decades, indicating a challenging amendment process.

Bulgaria

Bulgaria has a special amendment procedure (Articles 157–163) that is required to revise international borders, change the form of government, modify how the Constitution and international treaties are applied, or suspend citizens' rights. This procedure involves electing a Great National Assembly consisting of 400 deputies, followed by passing the amendments with a two-thirds majority in three successive readings.

Czech Republic

In the Czech Republic, a passage of a constitutional act requires the agreement of three-fifths of all Deputies and Senators present at the time 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.

Germany

The German Basic Law includes entrenched clauses that restrict certain amendments to protect essential characteristics of the state. For example, it forbids modifications to the federal nature of the country and the abolition or alteration of articles pertaining to human dignity, human rights, and democracy.

Italy

Article 139 of the Constitution of Italy states that "the republican form cannot be subject to constitutional revision," indicating a restriction on amending the country's form of government.

United States

The United States Constitution provides a formal amendment process in Article V, which involves a two-step process of proposal and ratification. An amendment can be proposed by a two-thirds majority vote in both houses of Congress or by a constitutional convention called for by two-thirds of the state legislatures. Ratification requires approval by three-fourths of the states, either through their legislatures or ratifying conventions.

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