Amending The Constitution: Exploring Government Powers

The ability to amend a constitution is a crucial aspect of any government, as it allows for necessary changes to be made over time. The process of amending a constitution varies across different countries and their respective forms of government. In the United States, for example, the Constitution can be amended through a proposal by two-thirds of both houses of Congress, followed by ratification by three-fourths of the state legislatures. On the other hand, the Parliament in Bulgaria follows a special amendment procedure to make changes to its constitution, which includes electing a Great National Assembly and passing amendments with a two-thirds majority. In Japan, amendments to the constitution are promulgated by the Emperor in the name of the people. Each country's amendment process is designed to protect the sacrosanct characteristics of the state, such as democratic values and human rights, while also allowing for necessary changes to be implemented.

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Presidential exclusion from the amendment process

The ability to amend a constitution varies across different forms of government. In the United States, the authority to amend the Constitution is derived from Article V of the Constitution. Notably, the President does not have a constitutional role in the amendment process, and the joint resolution does not require their signature or approval. Instead, the process is managed by the Archivist of the United States, who heads the National Archives and Records Administration (NARA), and the Director of the Federal Register. This process demonstrates a deliberate exclusion of the President from directly influencing constitutional amendments.

The exclusion of the President from the amendment process aligns with the system of checks and balances inherent in the US Constitution. By vesting the authority to propose amendments with Congress and the states, respectively, the amendment process is insulated from the direct influence of the executive branch. This distribution of powers helps maintain a balance of power and prevents the concentration of authority in a single individual or entity.

The rationale behind excluding the President from the amendment process may be rooted in the desire to protect the stability and integrity of the Constitution. By removing presidential influence, the amendment process becomes less susceptible to the political ideologies or personal agendas of the sitting President. This safeguard helps ensure that any changes made to the Constitution reflect a broader consensus among lawmakers and the American people, rather than the interests of a single individual or political party.

Additionally, the exclusion of the President from the amendment process can be viewed as a measure to protect against potential abuses of power. By requiring a two-thirds majority vote in both the House of Representatives and the Senate to propose an amendment, the process becomes more deliberate and consensus-driven. This high threshold helps prevent hasty or unilateral changes to the Constitution, ensuring that amendments reflect a robust debate and broad support across political factions.

While the President may not have a direct role in proposing or ratifying amendments, their presence during the certification process underscores the ceremonial significance of constitutional amendments. The President's participation in this ceremonial function highlights the importance of constitutional amendments and serves as a symbolic representation of the executive branch's respect for the amendment process and the rule of law.

State legislature's role in ratification

The ability to amend a constitution depends on the form of government in place. For instance, in the United States, the authority to amend the Constitution is derived from Article V of the Constitution. This article outlines two methods for amending the nation's frame of government.

The first method involves Congress proposing amendments whenever two-thirds of both houses deem it necessary. The second method requires Congress to call a convention for proposing amendments at the request of two-thirds of state legislatures (34 states as of 1959). This second method, the convention option, has yet to be invoked.

Once an amendment is proposed, it is sent to the states for their consideration. Governors then formally submit the amendment to their state legislatures or call for a convention, depending on what Congress has specified. State legislatures can then vote on the proposed amendment, with ratification requiring a simple majority or two-thirds majority for more significant changes.

The role of state legislatures in the ratification process is crucial. State legislatures can choose to accept or reject a proposed amendment without making any changes to it. The ratification process in a state legislature is procedurally simple, requiring a resolution, memorial, or proclamation of ratification and a subsequent vote. However, some state legislatures have taken action on proposed amendments before receiving official notice.

In certain cases, states may opt for a convention method of ratification, which is more complicated and involves separate procedures from the state legislature. This method approximates a one-state, one-vote national referendum, allowing the sentiments of registered voters to be considered on sensitive issues. The convention method has only been used once in American history, for the ratification of the 21st Amendment in 1933.

Overall, the state legislatures play a vital role in the ratification process, either directly voting on proposed amendments or influencing the outcome through conventions. Their decisions carry equal weight, regardless of the state's population or time in the Union.

The UK's inability to pass entrenchment clauses

The UK's constitution is uncodified, unlike many other countries, and is contained in informal conventions, standing orders of the two Houses of Parliament, and ordinary legislation. This means that the UK constitution is unentrenched as previous legislation can be amended by passing a new statute, requiring only a simple majority vote in the House of Commons. This is a key feature of the UK's system of parliamentary sovereignty, where Parliament may pass any law it wishes, with the exception that it cannot bind its successors (or be limited by its predecessors). This is known as the doctrine of parliamentary supremacy.

The UK constitution's unentrenched nature has been a topic of debate, with some arguing that it represents a weakness in the system, allowing for rapid and dramatic change. For example, the Fixed-term Parliaments Act 2011 restricted the Prime Minister's ability to dissolve Parliament and call a general election. However, in 2019, this was annulled by a simple majority through the passing of the Early Parliamentary General Election Act 2019, allowing a snap election to be held. This power of Parliament may be seen as a weakness in the British system, as it highlights the inability to pass effective entrenchment clauses that would seek to bind the hands of future governments.

In contrast, other democracies have mechanisms in place to protect against rapid or drastic changes to their constitutions. For instance, the Commonwealth Constitution of Australia can only be amended by referendum, requiring the support of a majority of Australian voters nationwide, as well as a majority of voters in a majority of states. Similarly, the Constitution of Indonesia states that it can be amended by proposing amendments through one-third of the members of the People's Consultative Assembly, with a simple majority required for adoption.

While the UK has considered notions of entrenchment, such as the supermajority requirement in the Fixed-term Parliaments Act 2011, it has not fully adopted more robust models of entrenchment. The Report of the Commission on the UK's Future, for example, proposed a House of Lords veto over some legislation approved by the Commons, but this was not considered a radical reform and was met with caution.

Overall, the UK's inability to pass entrenchment clauses stems from the doctrine of parliamentary supremacy and the uncodified nature of its constitution, allowing for the flexibility to amend previous legislation through a simple majority vote.

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Japan's constitution and Article 9

The ability to amend a constitution is typically held by a country's legislative body, such as a parliament or congress. For example, in the United States, the authority to amend the Constitution is derived from Article V, which outlines a process involving Congress and the Archivist of the United States. Bulgaria also has a parliamentary system where the parliament can amend the Constitution through normal and special amendment procedures.

Now, let's focus on Japan's Constitution and Article 9:

Japan's Constitution, adopted on May 3, 1947, during the Allied occupation following World War II, includes a unique and significant component: Article 9. This article is a pacifist clause that renounces war as a means of settling international disputes and seeks to ensure Japan's commitment to international peace. The relevant excerpt from Article 9 states:

> "Aspiring sincerely to an international peace based on justice and order, the Japanese people forever renounce war as a sovereign right of the nation and the threat or use of force as a means of settling international disputes. In order to accomplish the aim of the preceding paragraph, land, sea, and air forces, as well as other war potential, will never be maintained. The right of belligerency of the state will not be recognized."

The inclusion of Article 9 was influenced by the Supreme Commander for the Allied Powers, particularly Douglas MacArthur and Charles Kades. However, there is a dispute regarding the source of the pacifist clause. Some attribute it to Prime Minister Kijūrō Shidehara, who suggested prohibiting any military establishment in Japan. Shidehara believed that a post-war military would be meaningless and could lead to an obsession with rearming the country. On the other hand, constitutional scholar Toshiyoshi Miyazawa and other historians argue that the idea originated with MacArthur himself, using Shidehara as a pawn.

The House of Representatives amended Article 9, adding phrases such as "aspiring sincerely to an international peace based on justice and order" to emphasize the commitment to peace. This amendment was not objected to by the Supreme Commander for the Allied Powers (SCAP). The article's impact extended beyond Japan, as it set a precedent for similar provisions in post-war Germany's constitution, overseen by the United Kingdom after World War I.

Article 9's interpretation and its impact on Japan's military capabilities have evolved over time. While it initially aimed to prevent Japan's rearmament, the Cold War era saw a shift in perspective from the United States, which desired an active military role for Japan against communism. Despite these changing geopolitical dynamics, Article 9 remains a fundamental aspect of Japan's Constitution, reflecting the country's commitment to international peace and the limitations on its use of force.

Bulgaria's special amendment procedure

In general, the ability to amend a constitution is dependent on the form of government in place. In the United States, for example, Congress proposes an amendment in the form of a joint resolution, bypassing the President. The joint resolution is then sent to the National Archives and Records Administration (NARA) for processing and publication. A proposed amendment becomes part of the Constitution when it is ratified by three-fourths of the states.

Bulgaria, on the other hand, has a special amendment procedure outlined in Articles 157-163 of its constitution. This procedure is required for making significant changes, such as revising international borders, changing the form of government, altering how the Constitution and international treaties are applied, or suspending citizens' rights.

To initiate this process, an election is held for the Great National Assembly, consisting of 400 deputies. Of these deputies, 200 are elected by proportional vote, while the remaining 200 are chosen through the first-past-the-post method. Once the Great National Assembly is in place, amendments to the Constitution are passed by a two-thirds majority in three successive readings.

Additionally, Bulgaria's amendment process involves the Bulgarian Commission for the Protection of Competition (CPC), which plays a role in evaluating proposed amendments. For instance, the CPC has considered amendments to the Administrative Procedure Code, including the introduction of electronic justice and changes to state fees for appeals. The CPC's role adds another layer of scrutiny and input to Bulgaria's constitutional amendment process.

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