Amending The Constitution: Who Has The Power?

The process of amending a constitution varies across different countries. In the United States, the Constitution has been amended 27 times since it was drafted in 1787, with amendments proposed by Congress requiring a two-thirds majority vote in both the House of Representatives and the Senate. The Archivist of the United States then administers the ratification process, which is completed when three-fourths of the states (38 out of 50) ratify the amendment. In Belgium, the federal legislative power, including the King and Federal Parliament, can amend the Constitution by declaring the reasons for revision and dissolving the Federal Parliament to hold new elections. Germany's Basic Law for the Federal Republic, on the other hand, can be amended by a law expressly amending or supplementing its text, with a two-thirds majority in both the Bundestag and Bundesrat.

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The US Constitution amendment process

Amendments can be proposed by Congress with a two-thirds majority vote in both the House of Representatives and the Senate, in the form of a joint resolution. Alternatively, they can be proposed by a constitutional convention called for by two-thirds of the state legislatures. However, none of the 27 amendments to the Constitution have been proposed by constitutional convention. Since the President does not have a constitutional role in the amendment process, the joint resolution does not go to the White House for signature or approval. Instead, the original document is forwarded directly to NARA's Office of the Federal Register (OFR) for processing and publication. The OFR adds legislative history notes to the joint resolution, publishes it in slip law format, and assembles an information package for the states.

For an amendment to become part of the Constitution, it must be ratified by three-quarters 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 of the United States 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 amendment process was designed to be challenging, ensuring the Constitution's longevity. In recent history, the signing of the certification has become a ceremonial function attended by dignitaries, including the President.

State constitutional amendments

The process of amending the US Constitution is a difficult and time-consuming endeavour. The Constitution has been amended only 27 times since 1787, and none of these amendments have been proposed by constitutional convention. The US Constitution grants the authority to amend it through Article V. After Congress proposes an amendment, the Archivist of the United States, who leads the National Archives and Records Administration (NARA), is tasked with overseeing the ratification process.

Constitutional conventions are another method to propose amendments. Two-thirds of state legislatures can request Congress to call a Constitutional Convention. However, this method has never been used. Most states (36 out of 49) require legislatures to approve amendments during a single legislative session. An additional four states require amendments to be passed during one or two successive legislative sessions, depending on the majority received. The remaining nine states mandate that legislatures approve amendments twice: once during each of two separate legislative sessions.

The amendment process at the state level varies, but it generally involves legislative approval, voter approval, or a combination of both. The specific requirements and procedures for amending state constitutions differ from state to state, with some states having unique provisions, such as Florida's commission-referred amendment process.

Citizen-initiated amendments

The process typically involves collecting petition signatures from a certain minimum number of registered voters in a state. This number varies depending on the state and the type of initiative. For example, in some states, citizens may need to collect signatures from as few as 5% of registered voters, while in others, the requirement might be as high as 20%. Once the required number of signatures is verified, the proposed amendment can be placed on the ballot for voters to decide.

Direct initiatives allow citizens to propose a constitutional amendment directly to the voters, bypassing the state legislature. This means that the proposed amendment will go directly to the ballot for voters to decide without any changes or input from the state legislature. This process gives citizens a more direct role in shaping the constitution and is available in 16 states.

On the other hand, indirect initiatives involve the state legislature in the process. After collecting the required number of signatures, the proposed amendment is sent to the state legislature for consideration. The legislature can then take various actions, such as approving the amendment outright or proposing alternative statutes to appear alongside the citizen-initiated amendment on the ballot. This process allows for more input and deliberation from elected officials and is available in two states: Massachusetts and Mississippi.

The citizen-initiated amendment process is an important tool for citizens to have a direct say in shaping the laws and constitution of their state. It provides a mechanism for citizens to propose and enact changes that they believe are necessary and have a direct impact on their lives. However, it is important to note that the amendment process, whether citizen-initiated or not, is deliberately designed to be difficult and time-consuming to ensure the longevity and stability of the constitution.

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Amendments in other countries

The process of amending a country's constitution varies across the world. Some countries, like Canada, Israel, and the UK, do not have a single constitution document but instead follow various written and unwritten acts, statutes, common laws, and practices that collectively outline the fundamental principles of their governance.

Other countries, like Albania, explicitly outline the process of amending their constitutions. In Albania, an initiative to amend the constitution must be proposed by at least one-fifth of the Assembly members. The amendment must then be approved by at least two-thirds of the Assembly members, who may decide to put the amendment to a referendum. The amendment becomes effective after ratification by referendum, which must take place within 60 days of Assembly approval.

Bulgaria has two amendment procedures: a normal amendment procedure and a special amendment procedure. The normal procedure allows the Parliament to amend the Constitution for minor issues with a three-quarters majority, or a two-thirds majority upon reintroduction after two months. The special procedure is the only way to make changes to international borders, the form of government, the application of the Constitution and international treaties, and the suspension of citizens' rights. This procedure involves electing a Great National Assembly, consisting of 400 deputies, and passing the amendments with a two-thirds majority in three successive readings.

Some countries, like Greece, outline their amendment processes in specific articles of their constitutions. For example, 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, according to Article 105. However, certain parts of the Ethiopian Constitution, such as Chapter Three, which covers human and democratic rights, require the total consensus of the federal regional states and two-thirds of each house of Parliament to be amended.

The European Union, as a supranational entity, has a unique process for constitutional amendment. Prior to the Treaty of Lisbon in 2009, the only procedure for revising the treaties on which the EU is based was through an intergovernmental conference. Since then, Article 48 of the Treaty on European Union has outlined two procedures for revision: ordinary revision, which relates to key changes in the competences of the EU and requires an intergovernmental conference to adopt proposals by consensus, and simplified revision, where the proposed amendments relate to the EU's internal actions and policies, and the European Council unanimously adopts a decision after consulting the relevant bodies.

The difficulty of amending the Constitution

Amending the U.S. Constitution is a challenging and time-consuming process. The Constitution has been amended only 27 times since it was drafted in 1787, indicating the rarity of successful amendments. The framers of the Constitution intentionally made it difficult to amend, as it was written "to endure for ages to come", according to Chief Justice John Marshall in the early 1800s.

The first step in the amendment process is for Congress to propose an amendment with a two-thirds majority vote in both the House of Representatives and the Senate. Alternatively, two-thirds of state legislatures can request that Congress call a Constitutional Convention to propose an amendment. However, this has never occurred. Once an amendment is proposed, it must be ratified by three-quarters of the states (38 out of 50) to become part of the Constitution.

The amendment process is challenging due to the high thresholds required for both proposing and ratifying amendments. Achieving a two-thirds majority in Congress or support from two-thirds of state legislatures is a significant hurdle. Additionally, gaining ratification from 38 states ensures that amendments reflect a broad consensus across the country. This process is designed to prevent hasty or impulsive changes to the foundational document of the nation.

While the U.S. Constitution is challenging to amend, state constitutions are amended more frequently and offer multiple paths for amendments. State legislatures generate the majority of state constitutional amendments, and some states allow for citizen-initiated amendments. The ease of amending state constitutions contrasts with the rigorous process required to amend the U.S. Constitution, highlighting the deliberate difficulty of the latter.

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