Omar Bennett
A constitutional amendment is a modification of the constitution of a polity, organization, or other type of entity. The process of amending a constitution varies across countries. In the United States, the Constitution has been amended 27 times since it was drafted in 1787, with amendments being 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 the state legislatures. The amendment then needs to be ratified by three-fourths of the states (38 out of 50 states) to become part of the Constitution. Other countries, such as Germany, Italy, and Poland, have different procedures and restrictions in place for amending their constitutions.
| Characteristics | Values |
|---|---|
| Authority to amend | Derived from Article V of the Constitution |
| Amendment proposal | 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 the state legislatures |
| Amendment ratification | Requires ratification by three-fourths of the states (38 of 50 states) |
| Amendment process | Difficult and time-consuming, requiring approval by a supermajority in the legislature or direct approval by the electorate in a referendum |
| Amendment restrictions | Some constitutions use entrenched clauses to protect characteristics of the state, such as democracy or human rights |
| Amendment timing | Amendments are forbidden during a federal intervention, state of defence, or stage of siege |
| Amendment subjects | May include abolishing the federalist form of government, altering suffrage, or changing the separation of powers |
| Amendment exceptions | Certain subjects specified in Chapters I, II, or XII may require a confirmatory referendum |
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What You'll Learn
The amendment process
A proposed amendment must first be passed by a two-thirds majority vote in both the House of Representatives and the Senate. This can be achieved through a joint resolution, which does not require the signature or approval of the President. Once passed, the resolution is forwarded to the National Archives and Records Administration (NARA) for processing and publication. The Office of the Federal Register (OFR) within NARA then adds legislative history notes and publishes the resolution in slip law format, along with an information package for the states.
The proposed amendment must then be ratified by the legislatures of three-fourths of the states (38 out of 50 states). The states have the option to approve the amendment through their legislatures or through state ratifying conventions, depending on the mode of ratification chosen by Congress. Once the OFR verifies that the required number of authenticated ratification documents has been received, 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 serves as official notice that the amendment process is complete.
In some cases, a referendum may be required to confirm the amendment. For example, in Poland, if a bill to amend the Constitution relates to specific provisions, a confirmatory referendum must be held within a certain timeframe. The amendment is considered accepted if the majority of those voting express support. The statute is then submitted to the President of the Republic for signature and promulgation in the official journal of laws.
It is important to note that some constitutions may have restrictions on the types of amendments that can be made, often to protect fundamental characteristics of the state, such as human rights and democratic government. Additionally, amendments may be forbidden during certain periods, such as a state of emergency or martial law.
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Ratification
A constitutional amendment is a modification of the constitution of a polity, organisation, or other type of entity. The process of amending a constitution varies across different nations. This text will focus on the process of ratification in the United States, as an example of a constitutional amendment process.
In the United States, the authority to amend the Constitution is derived from Article V of the Constitution. The process of amending the Constitution is intentionally designed to be difficult and time-consuming. The Constitution has been amended only 27 times since it was drafted in 1787, including the first 10 amendments, which were ratified on December 15, 1791, and are known as the Bill of Rights.
A proposed amendment must be passed by 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 the state legislatures. Once an amendment is proposed by Congress, the Archivist of the United States is responsible for administering the ratification process. The Archivist follows procedures and customs established by the Secretary of State and the Administrator of General Services, who previously performed these duties.
The ratification process requires that three-fourths of the state legislatures (38 out of 50 states) ratify the amendment. This can be done through the state legislatures or through state ratifying conventions, depending on the mode of ratification chosen by Congress. Once the required number of authenticated ratification documents is received, the Archivist certifies 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 that the amendment process is complete.
The process of amending the Constitution in the United States is a complex and rigorous procedure, demonstrating the importance and permanence of the constitutional framework.
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Constitutional conventions
A constitutional amendment is a change or addition to the written constitution of a nation, state, or other entity with a constitution. The process of amending a constitution varies by jurisdiction, usually requiring a proposal by a legislature or a constitutional convention and subsequent approval by the legislature, the executive, or the people in a referendum. Some jurisdictions also allow for amendment through a popular initiative process.
The topic of a constitutional amendment can cover a wide range of subjects, and these are often areas that are seen as fundamental to the nation and its governance. The scope of what can be amended and the process to do so is often strictly defined within the constitution itself. The subjects of constitutional amendments are often focused on matters such as:
- Rights and Freedoms: This includes individual liberties and civil rights, such as freedom of speech, religion, and the press, as well as the right to privacy, due process, and equal protection under the law. Amendments in this area can expand or restrict these freedoms and rights.
- Government Structure and Powers: Amendments can address the distribution of powers between different branches of government, such as the executive, legislative, and judicial branches, and between different levels of government, such as federal and state governments. It can also include matters such as the process of elections, the qualifications for holding office, and the procedures for impeachment and removal from office.
- Social Issues and Policies: Social policies and issues are often the subject of constitutional amendments. This can include areas such as education, healthcare, environmental protection, and social welfare policies. Amendments in these areas can reflect changing social values and priorities.
- Response to Judicial Interpretation: Sometimes, amendments are proposed in response to judicial interpretations of the constitution by the courts. These amendments can be an effort to clarify or change the interpretation of a particular provision or to address a perceived overreach by the judiciary.
- Emergency and National Security: Matters relating to national security and emergency powers are also potential subjects for amendment. This can include the powers of the executive during times of crisis, the declaration of war, and the deployment of armed forces.
Now, focusing on 'Constitutional Conventions':
The purpose of constitutional conventions is to provide guidance, flexibility, and stability to the constitutional system. They help ensure that amendments are made in a thoughtful, deliberative manner and that the fundamental principles of the constitution are respected. Conventions can also provide a framework for resolving disputes or ambiguities that arise during the amendment process. While they are not legally binding, adhering to constitutional conventions carries a strong moral and political force. Departing from established conventions can lead to political backlash, public disapproval, or even constitutional crises.
One key constitutional convention is the notion of "constitutional interpretation." This refers to the understanding that those involved in the amendment process should interpret the constitution in a manner consistent with its original meaning, intent, and underlying principles. This convention helps maintain continuity and prevents radical departures from the constitution's foundational ideals. Another important convention is "amendment legitimacy," which suggests that amendments should be adopted through a legitimate and widely accepted process. This typically involves following established amendment procedures and ensuring broad consensus or supermajority support for any changes.
In some cases, constitutional conventions can also provide a framework for initiating the amendment process. For example, in systems that utilize constitutional conventions (gatherings of delegates) to propose amendments, conventions may dictate how delegates are selected, the rules of deliberation, and the procedures for adopting proposals. Adherence to these conventions helps ensure the legitimacy and effectiveness of the amendment process.
While constitutional conventions are generally followed, there may be occasions where they are deliberately broken or ignored. This can occur during periods of political upheaval, significant social change, or when there is a strong push for constitutional reform. However, departures from established conventions should be the exception rather than the norm, as they can undermine the stability and predictability that conventions are intended to provide.
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Special procedures
The process of amending a constitution is a difficult and time-consuming task. Most constitutions require that amendments be enacted through a special procedure that is more stringent than the process for passing ordinary legislation. These special procedures can include supermajorities in the legislature, direct approval by the electorate in a referendum, or a combination of both.
In the United States, the authority to amend the Constitution is derived from Article V of the Constitution. A proposed amendment must be passed by 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 the state legislatures. This process has only occurred 27 times since the Constitution was drafted in 1787. Once an amendment is proposed, the Archivist of the United States is responsible for administering the ratification process. The amendment becomes part of the Constitution once it is ratified by three-fourths of the states (38 out of 50).
In other countries, there are similar special procedures for amending constitutions. For example, in Turkey, if a law on the amendment to the Constitution is adopted by a three-fifths or less than a two-thirds majority, it can be submitted to a referendum. In Poland, if a bill to amend the Constitution relates to certain provisions, a confirmatory referendum must be held, and the amendment is accepted if the majority of those voting express support.
Some constitutions also include entrenched clauses that restrict the kind of amendments that can be made. For instance, Article 79 (3) of the German Basic Law forbids modification of the federal nature of the country or the abolition of certain fundamental rights. Similarly, Article 139 of the Constitution of Italy states that the republican form of government cannot be subject to constitutional revision. These special procedures and restrictions ensure that any changes to a constitution are carefully considered and approved by a significant portion of the population.
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Limitations
A constitutional amendment is a modification of the constitution of a polity, organization, or other type of entity. Amendments are often directly woven into the relevant sections of an existing constitution, directly altering the text. They can also be appended to the constitution as supplemental additions, 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.
The authority to amend a constitution is subject to several limitations. Firstly, the process of amending a constitution is deliberately designed to be difficult and time-consuming. For example, in the United States, a proposed amendment must be passed by a two-thirds majority vote in both the House of Representatives and the Senate, and then ratified by three-fourths of the state legislatures or state ratifying conventions. This ensures that any changes to the constitution are thoroughly considered and have broad support.
Secondly, some constitutions contain entrenched clauses that restrict the types of amendments that can be made. These clauses protect fundamental characteristics of the state, such as democratic government and human rights. For instance, Article 79 (3) of the German Basic Law forbids modifications to the federal nature of the country and the abolition or alteration of articles pertaining to human dignity, human rights, and democracy. Similarly, Article 139 of the Constitution of Italy states that the republican form of government cannot be subject to constitutional revision.
Thirdly, amendments are often prohibited during certain periods, such as a state of emergency, martial law, federal intervention, or a state of siege. This is to prevent hasty or undemocratic changes to the constitution during times of crisis.
Fourthly, there may be limitations on the subjects that can be addressed through constitutional amendments. For example, in Poland, if a bill to amend the constitution relates to specific provisions, a confirmatory referendum must be held, and the amendment is only accepted if the majority of those voting express support. Additionally, some constitutions may specify that certain subjects are unamendable.
Finally, there are often restrictions on how frequently a proposed amendment can be considered. For instance, in the case of a defeated or prejudiced proposed amendment, the same subject cannot be addressed in another proposed amendment during the same legislative session. This prevents the continuous proposal of unpopular or controversial amendments.
These limitations on constitutional amendments serve to protect the integrity and stability of the constitution, ensuring that any changes are carefully considered, broadly supported, and in line with the fundamental principles of the polity or organization.
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Frequently asked questions
A constitutional amendment is a modification of the constitution of a polity, organization, or other type of entity. Amendments are often directly woven into the relevant sections of an existing constitution, directly altering the text.
The process of amending a constitution is often difficult and time-consuming. In the United States, an amendment must be passed by two-thirds of both houses of Congress and then ratified by three-fourths of the state legislatures or state ratifying conventions.
The United States Constitution has been amended 27 times since it was drafted in 1787. The first 10 amendments were adopted in 1791 as the Bill of Rights. Other examples include the 18th Amendment, which prohibited the manufacture and sale of alcohol, and the 21st Amendment, which repealed the 18th Amendment. Other countries have similar processes for amending their constitutions, and some constitutions restrict the types of amendments that can be made.
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