Constitutional amendment
A constitutional amendment (or constitutional alteration) 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 (codicils), thus changing the frame of government without altering the existing text of the document.
Most constitutions require that amendments be enacted through a special procedure that is more stringent than the process for passing 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 (a majority of voters in a majority of states is also necessary). Switzerland has procedure similar to that of Australia.
The special procedures for the amendment of some constitutions have proven to be so exacting, that of proposed amendments either few (eight Amendments out of 44 proposed in Australia), or none (as in Japan) have been passed over a period of several decades. In contrast, the former constitution of the U.S. state of Alabama was amended 977 times between its adoption in 1901 and its replacement by the current constitution in 2022.
Form of changes to the text
[edit]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.[1] 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.[2] 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.
Summary of methods
[edit]| Constitution | Proposed by | Approval by | Referendum requirement | Majority or Supermajority | Entrenched clauses? |
|---|---|---|---|---|---|
| Afghanistan | President | Legislature | No | 2/3 | Yes |
| Albania | Legislature (1/5) | Legislature | Yes | 2/3 + >50% | No |
| Algeria | President | Both houses of legislature + referendum (or Constitutional council + both houses of legislature) | >50% (or 3/4) | Yes | |
| Andorra | Monarch | Legislature | Yes | 2/3 + >50% | No |
| Legislature (1/3) | |||||
| Angola | President | Legislature | 2/3 | Yes | |
| Legislature (1/3) | |||||
| Antigua and Barbuda | Both houses of legislature | Yes | 2/3 (>50% in upper house) + 2/3 | No | |
| Argentina | Legislature (2/3) | Constitutional convention | No | 2/3 | No |
| Armenia | 1/3 of Parliament, the Government, or 200,000 voters for certain amendments; 1/4 of Parliament, the Government, or 150,000 voters for others. Additional 300,000 voters overrides need for Parliament. | Legislature | Sometimes | 2/3 (+ >50%). | Yes |
| Australia | Legislature (1 member) | Both houses of legislature (usually; see below) | Yes | >50% (absolute) in legislature + >50% (simple) nationally and in at least 4 of the 6 states and in any state where certain rights of that state are affected | No |
| Austria | Lower house (+ upper house in certain cases) | Sometimes (fundamental changes) | 2/3 + (2/3) | No | |
| Bahrain | Legislature (15 members) | Both houses of legislature (or joint session) | Yes | 2/3 (or 2/3) | Yes |
| Bangladesh | Legislature | Yes | 2/3 | Yes | |
| Belgium | Legislature (either house) | Legislature (before and after an election) | No | 2/3 | Yes (during a regency) |
| Brazil | President | Both houses of legislature | No | 3/5 | Yes |
| Legislature (1/3 of either house) | |||||
| Sub-national legislature (>50%) | |||||
| Bulgaria | President | Legislature (or constitutional convention for certain amendments) | 3/4 or 2/3 in two sittings (2/3 for constitutional convention) | No | |
| Legislature (1/4) | 2/3 | ||||
| Cambodia | Monarch | Legislature | No | 2/3 | Yes |
| Prime Minister | |||||
| Legislature (1/4) | |||||
| Canada | Both houses of legislature + 2/3 of provincial legislatures representing majority of population | No | >50% + >50% | No | |
| Chile | Legislature or President | Both houses of legislature | No | 4/7 | No |
| China | Legislature (Standing Committee) | Legislature | No | 2/3 | No |
| Legislature (1/5) | |||||
| China, Republic of | Legislature (1/4) | Legislature | Yes | 3/4 + >50% of total electorate | No |
| Czech Republic | Both houses of legislature | No | 3/5 | Yes | |
| Denmark | Legislature (before and after an election) | Yes | >50% + >50% (representing >40% of electorate) | No | |
| Djibouti | President | Legislature (or legislature + referendum) | Yes | 2/3 (or >50% + >50%) | Yes |
| Legislature (1/3) | |||||
| Ecuador | President | Legislature (or Legislature + referendum) | 2/3 (or >50% + >50% | Yes | |
| Legislature (1/3) | |||||
| Electorate (1%) | |||||
| Estonia | President | Legislature with or without an election (or referendum) | >50% + 3/5 after an election or 4/5 without an election (or >50%) | No | |
| Legislature (1/5) | |||||
| Ethiopia | Legislature (2/3 of either house) | Legislature in joint session + sub-national legislatures (or each house of legislature + sub-national legislature for certain sections) | 2/3 + 2/3 (or 2/3 + 100%) | No | |
| Sub-national legislatures (1/3) | |||||
| Egypt | President | Lower house | Yes | 2/3 + >50% | Yes |
| Legislature (1/5 of lower house) | |||||
| Fiji | Legislature | Yes | 3/4 + 3/4 | Yes | |
| Finland | Government | Legislature before and after an election (or a proposal can be declared by 5/6 as "urgent" and can then be passed without an election) | No | >50% + 2/3 (or 5/6 + 2/3) | No |
| Legislature (1 member) | |||||
| France | President | Both houses of legislature (or legislature in joint session) | Yes | >50% + >50% (or 3/5) | No |
| Legislature (any legislator) | |||||
| Gabon | President | Both houses of legislature + joint session (or referendum) | Sometimes | >50% + 2/3 (or >50%) | Yes |
| Government | |||||
| Legislature (1/3 of either house) | |||||
| Germany | Both houses of legislature | 2/3 | Yes | ||
| Greece | Legislature (50 legislators) | Legislature before and after an election | 3/5 + >50% or >50% + 3/5 | Yes | |
| Haiti | Executive | Both houses of legislature + joint session after an election | 2/3 + 2/3 | Yes | |
| Legislature (Either house) | |||||
| Honduras | Legislature | 2/3 | Yes | ||
| Hungary | President | Legislature | 2/3 | No | |
| Government | |||||
| Legislature (1/5) | |||||
| Iceland | Legislature before and after an election | Sometimes
(referendum if on status of the Church) |
>50% (+ >50%) | No | |
| India | Both houses of legislature (+ sub-national legislatures in some cases) | 2/3 (+ 50%) | No | ||
| Indonesia | Legislature (1/3) | Joint session of legislature | >50%+1 | Yes | |
| Ireland | Both houses of legislature | Yes | >50% + >50% | No | |
| Italy | Both houses of legislature (or both houses of legislature + referendum) | Sometimes | 2/3 (or >50% + >50%) | Yes | |
| Japan | Legislature (2/3) | Both houses of legislature | Yes | 2/3 + >50% | No |
| Jordan | Both houses of legislature | 2/3 | Yes | ||
| Kazakhstan | President | Both houses of legislature (or referendum) | 3/4 + >50% representing voters in 2/3 of the oblasts, major cities and the capital. | Yes | |
| Korea, Democratic People's Republic of | Legislature | 2/3 | No | ||
| Laos | Legislature | 2/3 | No | ||
| Libya | Legislature | 2/3 | No | ||
| Madagascar | President | Both houses of legislature | Yes | 3/4 + >50% | Yes |
| Legislature (2/3) | |||||
| Malawi | Legislature (or referendum) | 2/3 (or >50%) | No | ||
| Mexico | Legislature + sub-national legislatures | 2/3 + >50% | No | ||
| Namibia | Both houses of legislature (or lower house + referendum) | 2/3 (or 2/3 + 2/3) | Yes | ||
| The Netherlands | Legislature (lower house) | Both houses of legislature (before and after election) | 50% before election, 2/3 after | No | |
| North Macedonia | President | Legislature | 2/3 | No | |
| Government | |||||
| Legislature (30 legislators) | |||||
| Electorate (150,000 citizens) | |||||
| Pakistan | Legislature (either house) | Both houses of legislature | 2/3 | No | |
| Palau | Legislature (3/4 of both houses) | Referendum | Yes | >50% in 3/4 of states | No |
| Electorate (25%) | |||||
| Palestine | Legislature | 2/3 | No | ||
| Philippines | Legislature (2/3) | Either of legislature or referendum. | Yes | >50% | No |
| Constitutional convention | |||||
| Electorate (12% of voters representing at least 3% of every electoral district) | |||||
| Poland | President | Both houses of legislature | Certain amendments e.g. about human rights, rule of law, democracy, equality, national symbols, future constitution amendment rules, require a referendum, but only when requested by 1/5 of the lower house of the parliament or by the president (or by the upper house but the upper house approval is required in the standard way anyway)[5]. | 2/3 in lower house and >50% in upper house | No |
| Sejm (1/5) | |||||
| Senate | |||||
| Portugal | Legislature (Any legislator) | Legislature | 2/3 | Yes | |
| Qatar | Monarch | Legislature | 2/3 | Yes | |
| Legislature (1/3) | |||||
| Romania | President | Both houses of legislature (or joint session) | Yes | 2/3 (or 3/4) + >50% | Yes |
| Legislature (1/4 in either house) | |||||
| Electorate (500,000 voters) | |||||
| Russia | President | Sub-national legislatures (or, in some cases, legislature in joint session + constitutional convention or referendum) | 2/3 (or 3/5 + 2/3 or >50%) | No | |
| Government | |||||
| Legislature (1/5 in either house) | |||||
| Sub-national legislatures | |||||
| Samoa | Legislature | 2/3 | |||
| Sao Tome and Principe | Legislature (Any legislator) | Legislature | 2/3 | Yes | |
| Senegal | President | Legislature (or referendum) | 3/5 (or >50%) | Yes | |
| Legislature | |||||
| Serbia | President | Legislature | Sometimes | 2/3 (+ >50%) | No |
| Government | |||||
| Legislature (1/3) | |||||
| Electorate (150,000 voters) | |||||
| Seychelles | Legislature + referendum | Yes | 2/3 + >60% | No | |
| Sierra Leone | Legislature | Sometimes | 2/3 + 2/3 representing >50% of electorate | No | |
| Singapore | Legislature | 2/3 | No | ||
| Slovakia | Legislature | 3/5 | No | ||
| Slovenia | Government | Legislature | Sometimes (referendum if demanded by 30 legislators) | 2/3 (+ >50% out of >50% of electorate) | No |
| Legislature (20 legislators) | |||||
| Electorate (20,000 voters) | |||||
| Solomon Islands | Legislature | 2/3 (3/4 in certain cases) | No | ||
| Somalia | Government | Both houses of legislature | 2/3 | Yes | |
| Government (members) | |||||
| Legislature (Any legislator) | |||||
| Electorate (40,000 citizens) | |||||
| Spain | Government | Both houses of legislature | Sometimes
(referendum if demanded by 10% of either house of legislature) |
3/5 (or >50% of upper house + 2/3 of lower house) | Yes |
| Legislature (Any legislator) | |||||
| Sweden | Legislature before and after an election | Sometimes
(referendum if demanded by 1/3 of legislature) |
>50% + >50% | No | |
| Tajikistan | President | Referendum | Yes | >50% | Yes |
| Legislature (2/3) | |||||
| Tunisia | President | Legislature | Yes | 2/3 + >50% | Yes |
| Legislature (1/3) | |||||
| Turkey | Legislature (1/3) | Legislature | Yes | 3/5 + >50% | Yes |
| Turkmenistan | Legislature (or referendum) | 2/3 (or >50%) | Yes | ||
| Tuvalu | Legislature | 2/3 | No | ||
| Uganda | Legislature | Yes | 2/3 + >50% | No | |
| Ukraine | President | Legislature before an election + after an election | Sometimes | >50% + 2/3 (+ >50%) | Yes |
| Legislature (1/3) | |||||
| United Arab Emirates | Legislature | Legislature | 2/3 | No | |
| United Kingdom | Legislature (Any legislator) | Legislature | No | Majority votes in House of Commons and House of Lords (or Commons only if Parliament Act invoked) with the consent of the monarch (although they are constitutionally required to grant consent) | No |
| United States | Legislature (2/3 of both houses) | State legislatures or ratification conventions | No | 3/4 | Yes |
| Sub-national legislature (2/3) | |||||
| Uzbekistan | Both houses of legislature in joint session (or referendum) | 2/3 (or >50%) | No | ||
| Vanuatu | Prime Minister | Legislature | 2/3 | No | |
| Legislature (Any legislator) | |||||
| Venezuela | President | Legislature | Yes | >50% + >50% | No |
| Legislature (39%) | |||||
| Electorate (15% of voters) | |||||
| Vietnam | President | Legislature | 2/3 | No | |
| Legislature (Standing Committee) | |||||
| Legislature (2/3) | |||||
| Yemen | Prime Minister | Legislature | Sometimes | 2/3 (+ >50%) | No |
| Legislature (1/3 of lower house) | |||||
| Zambia | Legislature | Yes | 2/3 + >50% of total electorate | No | |
| Zimbabwe | Both houses of legislature | Sometimes | 2/3 (+ >50%) | No |
Africa
[edit]Ethiopia
[edit]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 in accordance with Article 105. The constitution's Chapter Three (describing both Human and democratic rights) and the constitution's Articles 104 and 105 are almost unamendable since they require the total consensus of the federal regional states and two-thirds of each house of Parliament. In Ethiopia's federal experience, each regional state is equal and has the right to veto amendments to the aforementioned articles.
South Africa
[edit]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.[6]: § 74
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 (NCOP), 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.[6]: § 74
All amendments must be passed by an absolute two-thirds supermajority in the National Assembly (the lower house); 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 (the upper house). 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 an absolute three-quarters supermajority in the National Assembly and six of the provinces in the NCOP.[6]: § 74
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.[6]: § 81
Americas
[edit]Brazil
[edit]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:
Constitutional amendments may be proposed by:
- I. at least one-third of the members of the Chamber of Deputies or the Federal Senate;
- II. the President of the Republic;
- III. more than one-half of the Legislative Assemblies of units of the Federation, each manifesting its decision by a simple majority of its members.
§1°. The Constitution cannot be amended during a federal intervention, state of defence or stage of siege.
§2°. A proposed amendment shall be debated and voted on in each Chamber of the National Congress, in two rounds, and shall be considered approved if it obtains three-fifths of the votes of the respective members in both rounds.
§3°. A Constitutional amendment shall be promulgated by the Executive Committees of the Chamber of Deputies and Federal Senate, taking the next sequential number.
§4°. No proposed constitutional amendment shall be considered that is aimed at abolishing the following:
- I. the federalist form of the National Government;
- II. direct, secret, universal and periodic suffrage;
- III. separation of powers;
- IV. individual rights and guarantees.
§5°. The subject of a defeated or prejudiced proposed Constitutional amendment may not be made the subject of another proposed amendment in the same legislative session.
Article 60 is the only article prescribed under Subsection 2 of Section 8 in the Brazilian constitution.
United States
[edit]Federal constitution
[edit]Article Five of the United States Constitution describes the process whereby the federal Constitution may be altered. Twenty-seven amendments have been added (appended as codicils) to the Constitution.
Amendment proposals may be adopted and sent to the states for ratification by either:
- A two-thirds (supermajority) vote of members present—if a quorum exists—in both the Senate and the House of Representatives of the United States Congress; or
- A majority vote of state delegations at a national convention called by Congress at the request of the legislatures of at least two-thirds (at present 34) of the states. (This method has never been used.)
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:
- The legislatures of three-fourths (at present 38) of the states; or
- State ratifying conventions in three-fourths (at present 38) of the states.
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 (1921), 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.[7]
A proposed amendment becomes an official Article of the Constitution immediately once it is ratified by three-fourths of the States.[7] 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 1 U.S.C.