Amendments: Do They Override The Constitution?

The constitution of a country is a set of fundamental principles or established precedents according to which a nation or a state is governed. A constitutional amendment, on the other hand, is a modification or an alteration of the constitution. Amendments are often interwoven into the relevant sections of an existing constitution, directly altering the text. In the event of a conflict, an article of amendment will usually take precedence over the provisions of the original text or an earlier amendment.

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The process of amending the US Constitution

The authority to amend the US Constitution is derived from Article V of the Constitution. The Constitution outlines two ways in which an amendment can be proposed:

• By Congress with a two-thirds majority vote in both the House of Representatives and the Senate.
• By a constitutional convention called for by two-thirds of the State legislatures.

It is important to note that none of the 27 amendments to the Constitution have been proposed by constitutional convention. Once an amendment is proposed by Congress, it is forwarded directly to the Office of the Federal Register (OFR) for processing and publication. The OFR adds legislative history notes to the joint resolution and publishes it in slip law format.

The OFR also assembles an information package for the States, which includes formal "red-line" copies of the joint resolution, copies of the joint resolution in slip law format, and other relevant information. The Governors then formally submit the amendment to their State legislatures or call for a convention, depending on what Congress has specified. When a State ratifies a proposed amendment, it sends the Archivist an original or certified copy of the State action, which is immediately conveyed to the Director of the Federal Register.

The OFR examines ratification documents for facial legal sufficiency and an authenticating signature. If the documents are in order, the Director acknowledges receipt and maintains custody of them. 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). Once the OFR verifies that it has received 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 has been completed. In recent history, the signing of the certification has become a ceremonial function attended by various dignitaries, including the President. It is worth noting that an article of amendment generally takes precedence over the provisions of the original text or an earlier amendment in the event of a conflict.

The role of the Supreme Court in the amendment process

The Supreme Court plays a crucial role in the US constitutional system of government. It is the highest court in the country and acts as the court of last resort for those seeking justice. The Supreme Court has the final say on whether a right is protected by the Constitution or when a Constitutional right has been violated. The Court's power of judicial review ensures that each branch of the government acknowledges its own limitations. It also safeguards civil rights and liberties by nullifying laws that conflict with the Constitution.

The Supreme Court's role in the amendment process is significant. Before the Fourteenth Amendment was passed in 1869, the Bill of Rights only applied to the federal government. However, after the amendment, the Supreme Court ruled that most of its provisions applied to the states as well. This marked a shift in the Court's role, as it gained the authority to determine when a Constitutional right was protected or violated by state actions.

The Supreme Court's interpretation of the Fourteenth Amendment's Due Process Clause has been particularly influential. The Court has used this clause to protect certain substantive rights that are not explicitly listed in the Constitution, such as in the Slaughter-House Cases (1873). This "substantive due process" jurisprudence has been controversial, as some worry that it allows unelected justices to impose their policy preferences on the nation.

Another important aspect of the Supreme Court's role in the amendment process is its power to review and strike down laws that it deems unconstitutional. For example, in the early 20th century, the Court used the Due Process Clause to invalidate state labour and wage regulations, citing "freedom of contract," which is not mentioned in the Constitution. This power of judicial review allows the Court to act as a check on the legislative branch, ensuring that laws passed by Congress do not violate the Constitution.

While the Supreme Court does not have a direct role in drafting or ratifying amendments, its interpretations of those amendments can shape their impact. The Court's interpretation of the Fourteenth Amendment, for instance, has had far-reaching consequences for individual rights and federalism. In conclusion, the Supreme Court's role in the amendment process is essential for maintaining the balance of power between the branches of government and safeguarding the rights and liberties guaranteed by the Constitution.

The impact of amendments on the original text

In the United States, the Constitution grants Congress the authority to propose amendments with a two-thirds majority vote in both the House of Representatives and the Senate. Alternatively, a constitutional convention can be called upon request by two-thirds of the state legislatures. Once an amendment is proposed, it must be ratified by three-fourths of the states to become part of the Constitution. This process ensures that any changes to the original text of the Constitution are carefully considered and widely accepted.

The impact of amendments can vary depending on their nature. Some amendments may directly contradict or supersede provisions in the original text, taking precedence over the original Constitution in the event of a conflict. However, there may be ambiguity regarding the intent of an amendment, whether it is meant to supersede or supplement an existing article. In certain cases, an amendment may explicitly express its purpose to repeal a specific existing article.

The process of amending a constitution varies across different countries. For example, the Constitution of Austria allows for a more liberal amendment process, where any parliamentary legislation can become constitutional law if it meets the required supermajority and formalities. On the other hand, the Constitution of Belgium can be amended by the federal legislative power, consisting of the King (typically represented by the Federal Government) and the Federal Parliament.

The number of amendments to a constitution can also vary. The United States Constitution, for instance, has been amended 27 times since 1787, while the Austrian Constitution has undergone frequent amendments, leading to a large number of constitutional provisions spread across its legal system.

In summary, amendments significantly impact the original text of a constitution by altering its framework and functions. The amendment process ensures that changes are carefully implemented and widely accepted. The effects of amendments can vary, from directly contradicting original provisions to supplementing existing articles. The specific processes and requirements for amendments differ internationally, and the frequency of amendments can range from a handful to numerous, depending on the country's constitutional history and practices.

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The difficulty of amending the Constitution

The United States Constitution is considered the world's most difficult constitution to amend. It has been described as "ancient and virtually impervious to amendment", with democratic reformers proposing thousands of amendments in the last 50 years alone, all of which have failed.

The process of amending the US Constitution is detailed in 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, or by a constitutional convention called for by two-thirds of the State legislatures. A proposed amendment then needs to be ratified by three-quarters of the States (38 out of 50) to become part of the Constitution. This process is intentionally difficult and time-consuming, with only 27 amendments ratified out of 33 passed by Congress and sent to the states.

The difficulty in amending the Constitution is further exacerbated by the evolution of constitutional norms and political practices, the configuration of congressional power, and the consolidation and disintegration of legislative majorities within and across states. These factors contribute to the varying levels of amendment difficulty across time, with some periods, such as the Progressive Era, witnessing a burst of amendment activity, while others, like the present, seeing little to no success in amending the Constitution.

While the US Constitution is notoriously difficult to amend, other countries have constitutions that are relatively more flexible. For example, the Constitution of Austria is considered unusually liberal in terms of constitutional amendments, allowing any piece of parliamentary legislation to be designated as "constitutional law" if the required supermajority and other formalities are met. Similarly, the Constitution of Belgium can be amended by the federal legislative power, consisting of the King (the Federal Government) and the Federal Parliament.

In conclusion, while the US Constitution's amendment process is challenging and has resulted in a low success rate for proposed amendments, it is essential to recognize that the difficulty of amending a constitution can vary across time and location, with some countries adopting more flexible approaches to constitutional amendments.

The number of amendments to the Constitution

The US Constitution is composed of a preamble, seven articles, and 27 amendments. The first 10 amendments, known as the Bill of Rights, were ratified on December 15, 1791. More than 11,000 amendments to the Constitution have been proposed, but only 27 have been ratified.

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, or by a constitutional convention called for by two-thirds of the State legislatures. When 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.

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 OFR 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 has been completed.

In the case of a conflict, an article of amendment generally takes precedence over the provisions of the original text or an earlier amendment. An amendment may explicitly express itself as repealing a specific existing article.

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