Malcolm Rivera
The process of amending a constitution varies across jurisdictions. In the United States, a proposed amendment must be passed by two-thirds of both houses of Congress and then ratified by three-fourths of the state legislatures. Alternatively, two-thirds of state legislatures can request Congress to call a Constitutional Convention, though this has never happened. In South Africa, a bill to amend the Constitution must be introduced in the National Assembly and published for public comment at least 30 days in advance. It must then be submitted to the provincial legislatures and the National Council of Provinces (NCOP) for debate. Once passed by the National Assembly and the NCOP, if necessary, it must be signed by the President and is then published in the Government Gazette. In Ethiopia, the Constitution can only be modified by a two-thirds majority of the country's regions and a two-thirds majority of a joint session of the Federal Parliamentary Assembly.
| Characteristics | Values |
|---|---|
| Country | United States |
| Amendment Process | A proposed amendment must be passed by two-thirds of both houses of Congress, then ratified by three-fourths of the state legislatures. Alternatively, two-thirds of the state legislatures could ask Congress to call a Constitutional Convention. |
| Difficulty | Very difficult and time-consuming |
| Number of Amendments | 27 since 1787 |
| Example of Failed Amendment | ERA Amendment in the 1980s |
| Country | Ethiopia |
| Amendment Process | The Constitution of Ethiopia can only be modified by a two-thirds majority of the country's regions and a two-thirds majority of a joint session of the Federal Parliamentary Assembly. |
| Unamendable Sections | Chapter Three (Human and democratic rights) and Articles 104 and 105, which require total consensus of the federal regional states and two-thirds of each house of Parliament. |
| Country | South Africa |
| Amendment Process | Can be amended by an Act of Parliament, but special procedures and requirements apply. A bill amending the Constitution must be introduced in the National Assembly and cannot contain any provisions other than constitutional amendments and directly related matters. |
| Unamendable Sections | Section 1, which can only be amended by a three-quarters supermajority in the National Assembly and six of the provinces in the NCOP. |
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What You'll Learn
Amendments via supermajorities
The process of amending the Constitution of a country is often a difficult and time-consuming task. The United States Constitution, for example, has only been amended 27 times since it was drafted in 1787. The framers of the Constitution made it challenging to amend the document to ensure its longevity. The authority to amend the Constitution of the United States stems from Article V of the Constitution.
In the United States, the Constitution can be amended through a supermajority in Congress, with a two-thirds majority vote in both the House of Representatives and the Senate. This process does not require the involvement of the President, as the joint resolution is forwarded directly to the National Archives and Records Administration (NARA) for processing and publication. However, in recent history, the President has been invited to witness the certification of amendments, adding a ceremonial aspect to the process.
Other countries also utilize supermajorities to amend their constitutions. For example, Ethiopia's Constitution requires a two-thirds majority of the country's regions and a two-thirds majority of a joint session of the Federal Parliamentary Assembly for amendments. Certain sections of the Ethiopian Constitution, such as those pertaining to human and democratic rights, are even more challenging to amend, necessitating total consensus from the federal regional states and two-thirds majorities in each house of Parliament.
In South Africa, the process of amending the Constitution involves an Act of Parliament, but it also mandates special procedures and requirements. A supermajority of at least six out of nine provinces is required for amendments affecting the National Council of Provinces (NCOP). Additionally, if an amendment pertains to a specific province, it must be approved by that province's legislature. Furthermore, Section 1 of the South African Constitution, which defines the country's foundational values, can only be amended by a three-quarters supermajority in the National Assembly and six of the provinces in the NCOP.
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Amendments via referendum
Amending a constitution through a referendum is a special procedure that is more stringent than the process for passing ordinary legislation. Referendums, also known as "ballot measures", "propositions", or "questions", are a way for voters to have a direct say in the amendment process. In the United States, the federal constitution does not require a referendum for amendments, but some states offer multiple paths for amending their constitutions, and referendums are a common feature. For example, 26 US states have initiative and/or veto referendum processes at the statewide level, and 49 states have at least one form of legislatively referred process to amend their constitutions.
In some states, referendums on calling a convention to amend the constitution are required to appear on the ballot automatically at periodic intervals, ranging from 10 to 20 years. In other states, a majority legislative vote is needed to call a convention referendum, while a supermajority legislative vote is required in others. Once a convention is called, it will submit any proposed amendments to voters for approval.
The specific process for amending a constitution through a referendum can vary. For example, in Tennessee, there are two methods for proposing amendments: through the legislature and by constitutional convention. In both cases, proposed amendments must be approved by a majority of voters in a referendum. In Ireland and Australia, amendments are drafted as Acts of Parliament but must be approved in a referendum before becoming law.
The referendum process can also be used at the local level. For example, in 2018, the voters of the city of Boulder approved a charter amendment allowing online petitioning by a vote of 71% to 29%. This proposal was developed by members of the city's Campaign Finance and Elections Working Group. Similarly, the District of Columbia does not have a constitution, but its Charter can be amended by referral to the ballot by the City Council, followed by congressional approval.
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Amendments via constitutional convention
The Constitution of the United States was drafted in 1787 and has been amended 27 times since, with the first 10 amendments being adopted four years later as the Bill of Rights. The framers of the Constitution made it difficult to amend the document, with the belief that it was written "to endure for ages to come".
The 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. Alternatively, an amendment can also be proposed via a constitutional convention called for by two-thirds of the state legislatures (34 of the 50). This method of proposing amendments has never been used, with all 27 amendments proposed by Congress.
A constitutional convention, also referred to as an Article V Convention, is one of two methods authorized by Article Five of the United States Constitution for proposing amendments. On the application of two-thirds of the state legislatures, Congress shall call a convention for proposing amendments, which become law only after ratification by three-fourths of the states (38 of the 50).
The process of amending the Constitution via a constitutional convention has never been utilized, but there have been several attempts to do so. In 1949, six states applied for a convention to propose an amendment to enable the participation of the United States in a world federal government. In the late 1960s, there was another attempt to amend the Constitution via an Article V Convention to overturn two Supreme Court decisions, but it fell one state short of the required 34 states.
The idea of a constitutional convention has its backers, with some arguing that it could address issues such as gridlock, the influence of interest groups, and the excessive focus of members of Congress on reelection. However, the process of amending the Constitution, whether through Congress or a constitutional convention, is challenging and time-consuming.
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Amendments by state legislatures
The Constitution of the United States has been amended 27 times since it was drafted in 1787. The process of amending the Constitution is a complex and lengthy one. The 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. An amendment can also be proposed by a constitutional convention called for by two-thirds of state legislatures. However, none of the 27 amendments to the Constitution have been proposed by a constitutional convention.
Once an amendment is proposed by Congress or a constitutional convention, it is sent to the states for ratification. Thirty-three amendments to the Constitution have been proposed by Congress and sent to the states for ratification since the Constitution was enacted on March 4, 1789. Of these, 27 have been ratified by the required number of states and have become part of the Constitution.
The process of ratification is administered by the Archivist of the United States, who heads the National Archives and Records Administration (NARA). The Archivist has delegated many of the duties associated with this function to the Director of the Federal Register. When a state ratifies a proposed amendment, it sends the Archivist an original or certified copy of the state action, which is then conveyed to the Director of the Federal Register. The OFR examines the ratification documents for 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 when 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 and serves as official notice to Congress and the nation that the amendment process has been completed.
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Amendments by parliament
In some countries, constitutional amendments are introduced as bills and become laws in the form of acts of parliament. For example, in South Africa, the constitution can be amended by an Act of Parliament, but special procedures and requirements apply to the passage of constitutional amendments. A bill amending the Constitution must be introduced in the National Assembly and cannot contain any provisions other than constitutional amendments and directly related matters. At least 30 days before a constitutional amendment bill is introduced in the National Assembly, the person or committee introducing the amendment must publish it for public comment, submit it to the provincial legislatures, and, if it does not need to be passed by the National Council of Provinces (NCOP), submit it to the NCOP for debate. When the bill is introduced, the comments received must be tabled in the National Assembly and, if appropriate, the NCOP. Amendments of the Bill of Rights and those affecting the role of the NCOP, the "boundaries, powers, functions or institutions" of the provinces or provisions "dealing specifically with provincial matters" must also be passed by the NCOP with a supermajority of at least six out of nine provinces. If an amendment affects a specific province, it must be approved by the concerned province's legislature. Section 1, which defines South Africa as a "sovereign, democratic state", is a specially entrenched clause that can only be amended by a three-quarters supermajority in the National Assembly and six of the provinces in the NCOP. Once an Act is passed by the National Assembly and, if necessary, the NCOP, it must be signed and agreed to by the President. As with any other Act of Parliament, an amendment typically comes into effect when published in the Government Gazette, but the text of the amendment may specify otherwise.
In Ireland and Australia, amendments are drafted in the form of Acts of Parliament but cannot become law until they have been approved in a referendum.
In Ethiopia, the constitution can only be modified by a two-thirds majority of the country's regions and a two-thirds majority of a joint session of the Federal Parliamentary Assembly, in accordance with Article 105. Chapter Three of the constitution, which covers human and democratic rights, and Articles 104 and 105 are almost unamendable since they require the total consensus of the federal regional states and a two-thirds majority of each house of Parliament. Each regional state has the right to veto amendments to these articles.
In the United States, a proposed amendment originates as a special joint resolution of Congress and does not require the President's signature or consent. After Congress proposes an amendment, 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 Archivist does not make any substantive determinations regarding the validity of State ratification actions, but their certification of the facial legal sufficiency of ratification documents is final and conclusive. In recent history, the signing of the certification has become a ceremonial function attended by dignitaries, including, in some cases, the President.
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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 can be interwoven into the relevant sections of an existing constitution, directly altering the text. They can also be appended to the constitution as supplemental additions (codicils), changing the frame of government without altering the existing text of the document.
The US Constitution can be amended 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 proposed, an amendment becomes part of the Constitution when it is ratified by three-fourths of the States (38 out of 50).
The South African Constitution can be amended by an Act of Parliament, with special procedures and requirements for the passage of constitutional amendments. A bill amending the Constitution must be introduced in the National Assembly and cannot contain any provisions other than constitutional amendments and directly related matters.
The Ethiopian Constitution can only be modified by a two-thirds majority of the country's regions and a two-thirds majority of a joint session of the Federal Parliamentary Assembly.
Under the 1919 German Weimar Constitution, any law that reached the necessary supermajorities in both chambers of parliament could deviate from the terms of the constitution without becoming part of the constitution. This very wide conception of "amendment" was ruled out in the postwar 1949 constitution, which only allows amendments by explicitly changing the constitution's text.
