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Encyclopedia > Constitutional amendments

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.

Contents

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 democratic form of government is forbidden. The constitution of Italy prohibits any change to the "republican form of the state"4. 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

  • International Constitutional Law (http://www.oefre.unibe.ch/law/icl/) (Database of national constitutions)
  • Government Offices of Iceland - the Constitution of Iceland (http://government.is/constitution/)

Footnotes

  1. 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.
  2. Article 1.
  3. 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.
  4. Article 139.
  5. Articles 1, 2 and 3.
  6. 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.

  Results from FactBites:
 
Constitutional amendment - Wikipedia, the free encyclopedia (1696 words)
A constitutional amendment is an alteration to the constitution of a nation or a state.
The constitution of Brazil may be amended with the consent of both houses of Congress by a majority of three-fifths.
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.
Constitutional Amendments - The U.S. Constitution Online - USConstitution.net (1047 words)
The amendment as passed may specify whether the bill must be passed by the state legislatures or by a state convention.
Amendments are sent to the legislatures of the states by default.
For example, before the Privacy Cases, it was perfectly constitutional for a state to forbid married couples from using contraception; for a state to forbid fls and whites to marry; to abolish abortion.
  More results at FactBites »

 
 

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