Constitutional amendment


A constitutional amendment is a modification of the constitution of a polity, organization or other type of entity. Amendments are often interwoven into the relevant sections of an existing constitution, directly altering the text. Conversely, they can be appended to the constitution as supplemental additions, thus changing the frame of government without altering the existing text of the document.
Most constitutions require that amendments cannot be enacted unless they have passed a special procedure that is more stringent than that required of ordinary legislation. Examples of such special procedures include supermajorities in the legislature, or direct approval by the electorate in a referendum, or even a combination of two or more different special procedures. A referendum to amend the constitution may also be triggered in some jurisdictions by popular initiative.
Australia and Ireland provide examples of constitutions requiring that all amendments are first passed by the legislature before being submitted to the people; in the case of Ireland, a simple majority of those voting at the electorate is all that is required, whereas a more complex set of criteria must be met in Australia. Switzerland has procedure similar to that of Australia.
In states such as the United Kingdom and New Zealand, which are both legally reliant on the principle of parliamentary sovereignty, the final authority on all constitutional matters is ultimately the legislature. This means that, in the United Kingdom for example, when the legislature wishes to make changes to the constitution, there is no entrenchment clause or special procedure they are required to comply with. Despite clauses such as those found in the Scotland Act 2016, which proclaims that Scotland's devolved government cannot be abolished except at a referendum, legal commentators have noted that the Parliament of the United Kingdom may simply set aside such a requirement. A similar situation can be found in the Fixed-term Parliaments Act 2011, which restricts the calling of elections on the whim of the Prime Minister. While in many nations changing such a procedure would require a constitutional amendment, the nature of the British system meant that the act was sufficient by itself to change the nature of a core executive power. In addition, the act was itself circumvented in 2019 to trigger an election, exposing the weakness of any entrenchment clauses in British-style systems.
The special procedures for the amendment of some constitutions have proven to be so exacting, that of proposed amendments either few, or none have been passed over a period of several decades. In contrast, the constitution of the U.S. state of Alabama has been amended 928 times since 1901.

Form of changes to the text

There are a number of formal differences, from one jurisdiction to another, in the manner in which constitutional amendments are both originally drafted and written down once they become law. In some jurisdictions, such as Ireland, Estonia, and Australia, constitutional amendments originate as bills and become laws in the form of acts of parliament. This may be the case notwithstanding the fact that a special procedure is required to bring an amendment into force. Thus, for example, in Ireland and Australia although amendments are drafted in the form of Acts of Parliament they cannot become law until they have been approved in a referendum. By contrast, in the United States a proposed amendment originates as a special joint resolution of Congress that does not require the President to sign and that the President can not veto.
The manner in which constitutional amendments are finally recorded takes two main forms. In most jurisdictions, amendments to a constitution take the form of revisions to the previous text. Thus, once an amendment has become law, portions of the original text may be deleted or new articles may be inserted among existing ones. The second, less common method, is for amendments to be appended to the end of the main text in the form of special articles of amendment, leaving the body of the original text intact. Although the wording of the original text is not altered, the doctrine of implied repeal applies. In other words, in the event of conflict, an article of amendment will usually take precedence over the provisions of the original text, or of an earlier amendment. Nonetheless, there may still be ambiguity whether an amendment is intended to supersede or to supplement an existing article in the text.
An article of amendment may, however, explicitly express itself as having the effect of repealing a specific existing article. The use of appended articles of amendment is most famous as a feature of the United States Constitution, but it is also the method of amendment in a number of other jurisdictions, such as Venezuela.
Under the 1919 German Weimar Constitution, the prevailing legal theory was that any law reaching the necessary supermajorities in both chambers of parliament was free to deviate from the terms of the constitution, without itself becoming part of the constitution. This very wide conception of "amendment" eased the rise of Adolf Hitler to power; it was consequently explicitly ruled out in the postwar 1949 constitution, which allows amendments only by explicitly changing the constitution's text.

Methods of constitutional amendment

Summary

Africa

Ethiopia

The Constitution of Ethiopia can only be modified by a simple majority of the country's regions, and two-thirds majorities in both houses of the Federal Parliamentary Assembly. Chapter 39 of the Constitution of Ethiopia cannot be amended.Besides the constitution’s Chapter three (both Human and democratic rights and the constitution’s Art. 104 and 105 are almost unamendable since they require the total consensus of the federal regional states. In Ethiopia’s federal experience, each regional state is equal and has the right to veto for the above articles.

South Africa

The Constitution of South Africa 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 have to be passed by the National Council of Provinces, submit it to the NCOP for debate. When the bill is introduced, the comments received must be tabled in the National Assembly, and in the NCOP when appropriate.
All amendments must be passed by an absolute two-thirds supermajority in the National Assembly ; as the Assembly has 400 members this requires 267 members to vote for the amendment. Most amendments do not have to be considered by the NCOP. Amendments of the Bill of Rights, and amendments 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 of the nine provinces. If an amendment affects a specific province, it must also be approved by the legislature of the province concerned. Section 1, which defines South Africa as "one, sovereign, democratic state" and lists its founding values, is a specially entrenched clause and 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 by the NCOP if necessary, it must be signed and assented to by the President. As with any other Act of Parliament, by default an amendment comes into effect when it is published in the Government Gazette, but the text of the amendment may specify some other date of commencement, or allow the President to specify one by notice in the Gazette.

Americas

Brazil

The Constitution of Brazil states various terms on how it can be amended. Article 60 lies within "Section VIII: The Legislative Process, Subsection 2: Amendments to the Constitution". The following is detailed therein:
Article 60 is the only article prescribed under Subsection 2 of Section 8 in the Brazilian constitution.

United States

Federal constitution
describes the process whereby the federal Constitution may be altered. Twenty-seven amendments have been added to the Constitution.
Amendment proposals may be adopted and sent to the states for ratification by either:
All 33 amendment proposals that have been sent to the states for ratification since the establishment of the Constitution have come into being via the Congress. State legislatures have however, at various times, used their power to apply for a national convention in order to pressure Congress into proposing a desired amendment. For example, the movement to amend the Constitution to provide for the direct election of senators began to see such proposals regularly pass the House of Representatives only to die in the Senate from the early 1890s onward. As time went by, more and more state legislatures adopted resolutions demanding that a convention be called, thus pressuring the Senate to finally relent and approve what later became the Seventeenth Amendment for fear that such a convention—if permitted to assemble—might stray to include issues above and beyond just the direct election of senators.
To become an operative part of the Constitution, an amendment, whether proposed by Congress or a national constitutional convention, must be ratified by either:
Congress has specified the state legislature ratification method for all but one amendment. The ratifying convention method was used for the Twenty-first Amendment, which became part of the Constitution in 1933.
Since the turn of the 20th century, amendment proposals sent to the states for ratification have generally contained a seven-year ratification deadline, either in the body of the amendment or in the resolving clause of the joint resolution proposing it. The Constitution does not expressly provide for a deadline on the state legislatures' or state ratifying conventions' consideration of proposed amendments. In Dillon v. Gloss, the Supreme Court affirmed that Congress—if it so desires—could provide a deadline for ratification. An amendment with an attached deadline that is not ratified by the required number of states within the set time period is considered inoperative and rendered moot.
A proposed amendment becomes an official Article of the Constitution immediately once it is ratified by three-fourths of the States. The Article usually goes into force at this time too, though it may self-impose a delay before that happens, as was the case of the Eighteenth Amendment. Every ratified Amendment has been certified or proclaimed by an official of the federal government, starting with the Secretary of State, then the Administrator of General Services, and now the Archivist of the United States, with the Archivist currently being responsible for certification under. The certification document usually contains a list of the States that ratified the Amendment. This certification is just used by the federal government to keep an official record and archive of the Amendment for its own purposes, and doesn't actually have any legal effect on the Amendment.
State constitutions
State constitutions in the U.S. are amended on a regular basis. In 19 states, the state constitutions have been amended at least 100 times.
Amendments are often necessary because of the length of state constitutions, which are, on average, three times longer than the federal constitution, and because state constitutions typically contain extensive detail. In addition, state constitutions are often easier to amend than the federal constitution.
Individual states differ in the difficulty of constitutional amendments. Some states allow for initiating the amendment process through the action of the state legislature or by popular initiative.
California
There are three methods for proposing an amendment to the California State Constitution: by the legislature, by constitutional convention, or by voter initiative. A proposed amendment must be approved by a majority of voters.
With the legislative method, a proposed amendment must be approved by an absolute supermajority of two-thirds of the membership of each house.
With the convention method, the legislature may, by a two-thirds absolute supermajority, submit to the voters at a general election the question whether to call a convention to revise the Constitution. If the majority of the voters vote yes on that question, within six months the Legislature shall provide for the convention. Delegates to a constitutional convention shall be voters elected from districts as nearly equal in population as may be practicable. The constitution does not provide any rules for the operation of the constitutional convention.
With the initiative method, an amendment is proposed by a petition signed by voters equal in number to 8% of the votes for all candidates for governor at the last gubernatorial election. The proposed amendment is then submitted to the voters at a general or special election.
New York
There are two methods of proposing amendments to the New York Constitution. All proposed amendments must be approved by a majority of voters in a referendum.
With the legislative method, an amendment proposal must be published for three months, then approved by an absolute majority of the members of each of the two houses, and approved again in a succeeding term of the houses, with an election intervening. Finally, the amendment proposal must be submitted to the people, and for ratification must be approved by a simple majority.
With the convention method, a constitutional convention must be convened by a majority vote of voters in a general election on the question.
Tennessee
There are two methods for proposing amendments to the Tennessee State Constitution: through the legislature and by constitutional convention. Proposed amendments must be approved by a majority of voters in a referendum.
With the legislative method, the Tennessee General Assembly passes a resolution calling for an amendment and stating its wording. This must pass in three separate readings on three separate days, with an absolute majority on all readings. It does not require the governor's approval. It must then be published at least six months before the next legislative election in newspapers of wide and general circulation. After the election, the proposed amendment must go through the same procedure. Then it is put on the ballot as a referendum in the next gubernatorial election. To be ratified it must again achieve an absolute majority of those voting in the gubernatorial election.
With the convention method, the legislature can put on any ballot the question of whether to call a constitutional convention. It must be stated whether the convention is limited or unlimited—that is, whether it can only amend the current constitution or totally abolish it and write a new one. If limited, the call must state which provisions of the current constitution are to be subject to amendment, and the subsequent convention, if approved, is limited to considering only amendments to the provisions specified in the call. The proposed amendments must then be submitted to the electorate and approved by a majority of those voting in the election. A constitutional convention cannot be held more frequently than once every six years.
Texas
The only method for proposing an amendment to the Texas State Constitution is through the legislature, either in regular or special session. The governor may call a special session, and specify the agenda for the session. To become part of the constitution, proposed amendments must be approved by a majority of voters in a referendum. Texas has had six different constitutions and the current constitution, adopted in 1876, has been amended 474 times.
A proposed amendment must be approved by an absolute supermajority of two-thirds of the elected membership of each house of the legislature. It is submitted to the voters in an election specified by the legislature. The wording of an explanatory statement that will appear on the ballot must be approved by the Texas Attorney General and printed in newspapers. The full text of the amendment must be posted by all county clerks for 30 days before the election.
Washington
The only method for proposing an amendment to the Washington State Constitution is through the legislature and can originate in either branch. The proposal must be approved by a two-thirds majority of the legislature. The proposed amendment is placed on the ballot at the next general election and must be approved by a majority of the voters.

Asia and Oceania

Australia

The procedure for amending the Constitution of Australia is detailed in Section 128 of the Constitution. It firstly requires that the proposal pass by absolute majority in the House of Representatives. This means that out of the 151 members of the House, at least 76 of them must agree to the proposal. If this succeeds then the proposal is moved to the Senate where it again must achieve an absolute majority, This means that of the 76 members of the Senate, at least 39 of them must agree to the proposal.
Following this, Australians then vote on the proposal. For a referendum to succeed both of the following must be achieved
  1. A majority of states must agree to the proposal.
  2. A majority of the combined votes of all of Australia must agree to the proposal.
The double majority is a major factor in why since 1906 out of 44 referendums only 8 have been successful.

India

The procedure to amend the Constitution of India is detailed in the Article 368 under Part XX of the Constitution. It requires the majority of total membership of each house and the majority of not less than two-thirds of present & voting of each house to amend the constitution. Since its commencement in 1950, Indian constitution has been amended 104 times, as of May 2020. Supreme Court in Kesavananda Bharti Case held that parliament's power to amend is not unlimited, and it can't amend the basic structure of the constitution. The ‘basic structure’ includes the supremacy of the Constitution, the rule of law, Independence of the judiciary, doctrine of separation of powers, federalism, secularism, sovereign democratic republic, the parliamentary system of government, the principle of free and fair elections, welfare state, etc.

China

The Constitution of China states how to be amended under Article 64 of "Chapter III: The Structure of the State". It says the following:

Japan

The Constitution of Japan states that it can be amended corresponding to Article 96 of "Chapter IX: Amendments" within the document. It says the following:
Japan has used this Constitution since Saturday, 3 May 1947. It was adopted and implemented as the most quintessential doctrine of Japanese governance following the Second World War and the Sino-Japanese war. As a result, in order to ensure that Japan would not be a source of future aggression, a special portion was written into the document in the form of "Article 9: Renunciation of War". It describes as follows:
Even though these two paragraphs are not expressly protected by the eternity clause, many Japanese people argue that it needs to be interpreted as being irrevocable due to the significant and precise nature of the article.

Philippines

Under the common interpretation of the Constitution, amendments can be proposed by one of three methods: a People's Initiative, a Constituent Assembly or a Constitutional Convention.

Turkey

The Constitution of Turkey details, through Provisional Article 175 under "I. Amending the Constitution, participation in elections and referenda" of "Part Seven: Final Provisions"
The Turkish constitution was adopted and implemented in 1982., it had been amended 21 times. Every amendment which has been approved into the document was passed by the people through a constitutional referendum that occurred in 2017. This means that all twenty-one amendments were added at the same time. Due to the contents that it would exponentially extend presidential tenure as well as controversies about electoral misconduct, the referendum was intensely controversial. Global attention was drawn to it both before and after the results were finalized for the same reasons.

Europe

European Union

The Treaties of the European Union are a set of international treaties between member states that describe the constitutional basis of the European Union. Prior to the Treaty of Lisbon’s entry into force in 2009, there was only one procedure for the revision of the treaties on which the EU is based: the convening of an intergovernmental conference. Since 2009, Article 48 of the Treaty on European Union has laid down two procedures for the revision of the treaties.
The Constitution of Albania states its terms for being amending under Article 177 within "Part 17: Amending The Constitution".
Article 177 is the only article under this part of the Albanian constitution.

Austria

The Constitution of Austria is unusually liberal in terms of constitutional amendments. Any piece of parliamentary legislation can be designated as "constitutional law", i.e., as a part of the constitution if the required supermajority and other formalities for an amendment are met. An amendment may take the form of a change of the Bundes-Verfassungsgesetz, the centerpiece of the constitution, a change to another constitutional act, a new constitutional act, or of a section of constitutional law in a non-constitutional act. Furthermore, international treaties can be enacted as constitutional law, as happened in the case of the European Convention of Human Rights. Over the decades, frequent amendments and, in some cases, the intention to immunize pieces of legislation from judicial review, have led to much "constitutional garbage" consisting of hundreds of constitutional provisions spread all over the legal system. This has led to calls for reform.
A majority of two-thirds in the National Council. Only in the case of a fundamental change of the constitution a confirmation by referendum is required. Since 1945, this has only happened once when Austria's accession to the European Union was approved by popular vote.
If a constitutional amendment limits the powers of the states, a two-thirds majority in the Federal Council of Austria is required as well. Depending on the matter on hand, two-thirds of the Federal Councilors present, or two-thirds of all Federal Councilors must approve. If the amendment would change articles 34 or 35, the majority of councilors of at least four of the nine states is an additional requirement.

Belgium

The Constitution of Belgium can be amended by the federal legislative power, which consists of the King and the Federal Parliament. In order to amend the Constitution, the federal legislative power must declare the reasons to revise the Constitution in accordance with Article 195. This is done by means of two so-called Declarations of Revision of the Constitution, one adopted by the Chamber of Representatives and the Senate, and one signed by the King and the Federal Government.
Following this declaration, the Federal Parliament is automatically dissolved and a new federal election must take place. This makes it impossible to amend the Constitution unless an election has intervened. Following the election, the new Federal Parliament can amend those articles that have been declared revisable. Neither Chamber can consider amendments to the Constitution unless at least two-thirds of its members are present and the Constitution can only be amended if at least two-thirds of the votes cast are in favour of the amendment.

Bulgaria

Under the current Constitution of Bulgaria, there are two procedures for amendment, depending on the part of the constitution to be amended:
This procedure is viewed by some critics as too slow and ineffective. There are voices in Bulgaria to remove the institution of Great National Assembly, which they view as an anachronism and to adopt a new procedure of constitutional amendment through popular vote.

Czech Republic

Passage of a constitutional act in the Czech Republic can only be accomplished through the agreement of three-fifths of all Deputies and Senators present at the time the proposed act is laid before each house of Parliament. It is the only type of legislation that does not require the signature of the President to become law. Furthermore, it is the only type of legislation the President cannot veto.

Denmark

The Constitution of Denmark provides an example of multiple special procedures that must be followed. After an amendment has been approved by parliament, a general election must be held; the new parliament must then approve the amendment again before it is finally submitted to a referendum. There is also a requirement that at least forty percent of eligible voters must vote at the referendum in order for an amendment to be validly passed.

Estonia

The Constitution of Estonia can only be modified by three-fifths majority in two successive complements of Parliament, and a referendum for certain chapters.

France

Amendments to the Constitution of France must first be passed by both houses with identical terms, and then need approval either by a simple majority in a referendum or by a three-fifths majority of the two houses of the French parliament jointly convened in Congress.

Germany

The Federal Republic of Germany uses a basic law as its constitution. The Basic Law for the Federal Republic of Germany states its terms for amending under Article 79 of the document.
The third paragraph was made by its framers to protect the country against any authoritarian or totalitarian regime such as that of Nazi Germany in the future. This is an example of the eternity clause in constitutional designing.

Greece

The Constitution of Greece is amendable through the terms which mentioned under Article 110 beneath "Section II: Revision of the Constitution" of "Part Four: Special, Final, and Transitional Provisions".

Ireland

The Constitution of Ireland can only be modified by referendum, following proposal approved by the lower and upper houses of the Oireachtas, amongst citizens entitled to vote for the President. The amendment succeeds by simple majority, and no quorum is required.

Italy

Article 138 of the Constitution provides for the special procedure through which the Parliament can adopt constitutional laws. Constitutional laws start by following the ordinary legislative procedure, which requires both houses of parliament to approve the law in the same text, with a simple majority. However, after having been approved for the first time, they need to be voted for by both houses a second time, which can happen no sooner than three months after the first. In this second reading, no new amendments to the bill may be proposed: the bill must be either approved or rejected in its entirety.
The constitutional law needs to be approved by at least a majority of MPs in each house in its second reading. Depending on the results of this second vote, the constitutional law may then follow two different paths.
Only three constitutional referendums have ever been held in Italy: in 2001, in 2006, and in 2016.

Poland

The Constitution of Poland says the following under Article 235 of "Chapter XII: Amending the Constitution" within it:

Portugal

The Constitution is amendable through the terms prescribed under "Title II: Revision of the Constitution" of "Part IX: Guaranteeing and Revision of the Constitution" between Articles 284 and 289.

Romania

The Constitution of Romania mentions and outlines the terms by which it can be amended in "Article 150: Amendment Initiative", "Article 151: Amendment Procedure", and "Article 152: Limits to Constitutional Amendments". All three articles are written under "Title VII: Amendment of the Constitution" of the document.

Russia

The Constitution of Russia was created by the Russian Federation in 1993. It can be amended in correspondence with Articles 134 through 137 of "Chapter 9: Constitutional Amendments and Revision of the Constitution" under the document. In 2008, certain amendments were proposed which extended the terms of the President of the Russian Federation and State Duma members from four to six years and four to five years in duration respectively. These constitutional amendments are the first truly substantial amendments to the country's constitution added into the Russian constitution fifteen years prior to its adoption and implementation fifteen years earlier.

Serbia

The Constitution of Serbia states its terms for being amended between Articles 203 to 205 under "Part 9: Amending The Constitution" within the document. Even though the Serbian constitution can be amended, this has never happened even once ever since the document was adopted and implemented in 2006 when Montenegro declared its independence from Serbia after an independence referendum was won. This brought the state of Serbia-Montenegro to an end.

Spain

The Constitution of Spain can be amended through the procedures detailed between Articles 166 to 169 under "Part X: Constitutional Amendment" of the document. Additional details are provided between Sections 71 to 76 within the document as well.

Sweden

The Swedish Constitution consists of four fundamental laws: the Instrument of Government, the Act of Succession, the Freedom of the Press Act, and the Fundamental Law on Freedom of Expression.
The Instrument of Government, under "Chapter 8. Acts of law and other provisions", articles 14 to 17, states that in order to amend the fundamental laws, the Riksdag must take two identical decisions, and that these decisions must be separated by a general election. At least nine months shall elapse between the first submission of the amendment proposal and the date of the election, unless an exception is granted by the Committee on the Constitution with a majority of five sixths of its members.
One third of members of the Riksdag can also call for a binding referendum on a draft constitutional measure which already passed the first vote.

Inadmissible amendments

Some constitutions use entrenched clauses to 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 human rights. Amendments are often totally forbidden during a state of emergency or martial law.