| A constitutional amendment is an alteration to the constitution
of a nation or a state. In jurisdictions with 'entrenched' constitutions this requires a special procedure different from that
used for enacting ordinary laws.
Flexible constitutions
A flexible constitution is one that may be amended by a simple act of the legislature, in the same way as it passes ordinary laws. The 'uncodified' constitution of the United Kingdom
consists partly of important statutes, and partly of certain unwritten conventions. The statutes that make up the UK constitution can be amended by a simple
act of Parliament. UK constitutional conventions are held to evolve organically over time. The Basic Laws of Israel may
be amended by an act of the Knesset.
Procedures under entrenched constitutions
Rigid or entrenched constitutions may only be amended by a special procedure, that renders them more difficult
to amend than ordinary laws.
Special majority
The constitutions of a great many nations provide that they may be amended by the legislature, but only by a special, extra
large majority of votes cast (also known as a supermajority, or a
"qualified" or "weighted" majority). This is usually a majority of two-thirds the total number of votes cast. In a bicameral
parliament it may be required that a special majority be achieved in both chambers of the legislature. In addition, many
constitutions require a that an amendment receive the votes of a minimum absolute number of members, rather than simply
the support of those present at a meeting of the legislature which is in quorum.
For example, the German 'Basic Law' may be amended with the consent of a majority of
two-thirds in both the Bundestag and Bundesrat. The constitution of Brazil may be amended with the consent
of both houses of Congress by a majority of three-fifths.
Referendum
Some constitutions may only be amended with the direct consent of the electorate in a referendum. In some states a decision to submit an amendment to the electorate must first be taken by the
legislature. In others a constitutional referendum may be triggered by a popular initiative. The constitutions of the Republic of
Ireland, Denmark, Japan and Australia are amended by means of a referendum first proposed by parliament. The
constitutions of Switzerland and of several US states may be amended through the process of popular
initiative.
Approval by the legislature in consecutive terms
Some jurisdictions require that an amendment be approved by the legislature on two separate occasions during two separate but
consecutive terms, with a general election in the interim. Under
some of these constitutions there must be a dissolution of the legislature and an immediate general election on the occasion that
an amendment is adopted for the first time. Eg: Iceland, Denmark, the Netherlands. Norway.
Special requirements in federations
In the constitutions of some federations and confederations there are special provisions to ensure that amendments receive the support of the
component states. An amendment to the constitution of the United States must be ratified by three-quarters of either the state
legislatures, or of constitutional conventions specially elected in each of the states, before it can come into effect
1. In referenda to amend the constitutions of Australia and Switzerland it is required that a proposal be endorsed not just by an overall
majority of the electorate in the nation as a whole, but also by separate majorities in each of a majority of the states or
cantons. In addition, if an Australian referendum specifically impacts one or more states then a majority of the electorate in
each of those states must also endorse the proposal, so in Australia many conditions must be fulfilled for a Constitution
amendment to take place. For this reason very few proposed amendments to the Australian Constitution have passed.
Mixed systems
- In practice many jurisdictions combine elements of more than one of the usual amendment procedures. For example, the French constitution may be amended by one of two processes:
either a special legislative majority or a referendum. On the other hand, an amendment to the constitution of the US state of
Massachusetts must first be endorsed by a special majority in the
legislature during two consecutive terms, and is then submitted to a referendum.
- Some constitutions provide that their different provisions must be amended in different ways. Most provisions of the
constitution of Lithuania may be amended by a special legislative majority but a
change to the status of the state as an "independent democratic republic" must be endorsed by a three-quarters majority in a
referendum 2. Unlike its other provisions, a referendum is required to amend that part of the constitution of Iceland that deals with the relationship between church and state 3.
Inadmissible amendments
Some constitutions restrict the kind of amendment to which they may be subject. This is usually to protect characteristics of
the state considered sacrosanct, such as the democratic form of government or the protection of fundamental human rights. Under
many constitutions no amendment at all is permitted during a state of emergency. Under the German
constitution abolition of the protection of human dignity, of some basic human rights, and of the democratic form of
government is forbidden and the constitution authorizes violent resistance against any who undertake such an abolition. The
constitution of Italy prohibits any change to the "republican form of the
state"4, a feature also found in the Portuguese constitution. The
provisions of the Turkish constitution relating to the unitary, secular, 'republican'
nature of the state are declared irrevocable5.
Article V of the United States Constitution,
ratified in 1788, prohibited any amendments before 1808 which would affect slavery, and further provided that "no state, without
its consent, shall be deprived of it's [sic] equal suffrage in the Senate" at any time.
Form of changes to the text
Once made, amendments to most constitutions take the form of revisions to the main body of the text. They may, however, also
be appended as articles of amendment to the end of the text, leaving the body of the original text intact. One problem
with appending articles to the end of the text is that it may create ambiguity as to whether an amendment is intended to
supersede an existing article in the text or merely to supplement it. An article of amendment may, however, explicitly express
itself as having the effect of repealling a specified article 6. Amendments to the constitution of the US are appended to the end of the
original text, as are those to the constitution of Venezuela.
Related topics
External links
- Amendment (http://www.earlham.edu/~peters/writing/amdt.htm), by Peter Suber. From Philosophy of
Law: An Encyclopedia, edited by Christopher Berry Gray, Garland Pub. Co., 1999, vol. I, pp. 31-32.
- The Paradox of Self-Amendment: A Study of Logic, Law, Omnipotence, and
Change (http://www.earlham.edu/~peters/writing/psa/index.htm), by Peter
Suber. Full-text of the book, now out of print. Peter Lang Publishing, 1990. For an essay-length synopsis, see The Paradox of Self-Amendment in American Constitutional
Law (http://www.earlham.edu/~peters/writing/psaessay.htm), Stanford
Literature Review, 7, 1-2 (Spring-Fall 1990) 53-78.
Footnotes
- Some argue that with demographic changes the bar to the amendment of the US constitution is now set too high. It is said that
today a mere 4% of the US population can, in theory, block an amendment desired by the remainder of the population.
- Article 1.
- As of 2004 the relevant article is Article 62 which establishes the Evangelical Lutheran Church. Other provisions may be
amended by a special legislative majority.
- Article 139.
- Articles 1, 2 and 3.
- See by way of example the 21st Amendment to the US constitution on the repeal of prohibition. Section 1 of the article repeals the 18th Amendment.
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