Cecily Zamora
Changing a constitutional law is a complex process that varies across different countries and political systems. In general, amending a constitution requires a high threshold of approval, often involving supermajority votes in legislative bodies or special conventions. For example, the US Constitution can be amended through a proposal by Congress with a two-thirds majority in both the House of Representatives and the Senate, followed by ratification by three-fourths of the states. Other countries, like Bulgaria, have normal and special amendment procedures depending on the part of the constitution being amended. Some constitutions, like Austria's, are more flexible and allow for frequent amendments, while others, like Ethiopia's, have specific chapters or articles that are almost unamendable. The process of changing a constitutional law can be influenced by factors such as political stability, interpretation, and the distinction between written and unwritten constitutions.
| Characteristics | Values |
|---|---|
| Country | United States, Germany, Ethiopia, India, Austria, Bulgaria, Italy, Netherlands, Soviet Union |
| Amendment Process | Proposed by two-thirds of the House and Senate, or by a constitutional convention called for by two-thirds of the state legislatures |
| Amendment Requirements | Supermajority, other formalities, or specific procedures outlined by the constitution |
| Amendment Frequency | Varies, e.g. 106 amendments to the Indian Constitution since 1950, 27 amendments to the US Constitution |
| Amendment Initiation | Proposed by Congress, constitutional convention, or state legislatures |
| Amendment Ratification | Requires approval by three-fourths of the states (38 out of 50) in the US |
| Amendment Certification | Signed by dignitaries, the Archivist, or the Director of the Federal Register |
| Amendment Flexibility | Some constitutions are more flexible than others, e.g. Austria's constitution allows for frequent amendments |
| Unwritten Constitutions | Tend to change gradually and continually in response to changing needs |
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What You'll Learn
The process of constitutional amendment
The process of amending the US Constitution is a difficult and time-consuming endeavour. The Constitution has been amended only 27 times since it was drafted in 1787, and none of these amendments have been proposed by constitutional convention. The process of amending the Constitution is derived from Article V of the Constitution.
An amendment may be proposed by Congress with a two-thirds majority vote in both the House of Representatives and the Senate. The President does not have a constitutional role in the amendment process, so the joint resolution does not go to the White House for signature or approval. Instead, the original document is forwarded directly to the National Archives and Records Administration's (NARA) Office of the Federal Register (OFR) for processing and publication. The OFR adds legislative history notes to the joint resolution and publishes it in slip law format. The OFR also assembles an information package for the States, which includes formal "red-line" copies of the joint resolution, copies of the joint resolution in slip law format, and the statutory proposal.
After Congress proposes an amendment, the Archivist of the United States, who heads the NARA, is responsible for administering the ratification process. The Archivist has delegated many of the duties associated with this function to the Director of the Federal Register. Once the OFR verifies that it has received the required number of authenticated ratification documents (38 of 50 States), it drafts a formal proclamation for the Archivist 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 and serves as official notice to the Congress and to the Nation that the amendment process has been completed.
In recent history, the signing of the certification has become a ceremonial function attended by various dignitaries, including the President. For example, President Nixon witnessed the certification of the 26th Amendment, which prevented Congress from changing its own compensation during a term in progress.
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Unwritten vs written constitutions
A constitution is the fundamental framework of a nation's political system, outlining the relationship between a country's government and its citizens. It establishes the rights, rules, and responsibilities of the government and its citizens, and it outlines the powers of the various branches of government and the mechanisms through which laws are created and enforced. Constitutions can be written or unwritten.
A written constitution is a formal, codified document that serves as the supreme law of the land. It outlines the rights and responsibilities of the government and citizens, the type of constitutional order, and the laws that govern the system. Written constitutions are typically enacted through a formal process and often require a special majority to amend. Countries with written constitutions include the United States, India, France, Germany, and Canada (partially). The United States Constitution, the oldest written constitution, was ratified in 1788 and has since had 27 amendments.
On the other hand, an unwritten constitution is based on a collection of laws, customs, conventions, judicial decisions, and historical precedents. It is not structured or compiled in a single document but evolves over time, adapting to the changing needs and values of society. Unwritten constitutions are often found in countries with strong legal traditions and a long history, such as the United Kingdom, New Zealand, and Israel. The UK's unwritten constitution, for example, is based on statutes, common law, and conventions.
One advantage of an unwritten constitution is its flexibility. Because it is not 'set in stone', it is often easier to change the interpretation of a legal principle or rule. For example, the UK's unwritten constitution has been referred to as a "living constitution" as it adapts to reflect changing social attitudes. However, a disadvantage of unwritten constitutions is the lack of clarity, which can make it difficult to enforce the law and ascertain what is legal and what is not.
While written constitutions provide a clear and established set of rules, they can be strict and difficult to modify, which can hinder their adaptability to changing circumstances. On the other hand, unwritten constitutions are flexible and dynamic but may lack legitimacy due to their informality and ambiguity. Ultimately, both written and unwritten constitutions have their advantages and disadvantages, and the choice between the two depends on the specific needs and characteristics of a nation.
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The role of the President
The Constitution of the United States is a living document that can be amended through a defined process. While the President has no formal role in amending the Constitution, they have played a ceremonial and ministerial role in the process.
The President of the United States is the head of the executive branch of the federal government and is responsible for executing the laws of the land. The President has the power to make treaties, appoint ambassadors, ministers, judges, and other officers with the advice and consent of the Senate. The President also has the power to fill vacancies during the recess of the Senate.
In the context of amending the Constitution, the President does not have a constitutional role in the amendment process. The process is initiated by Congress, which proposes an amendment with a two-thirds majority vote in both the House of Representatives and the Senate. The proposed amendment is then sent directly to the National Archives and Records Administration (NARA) for processing and publication, bypassing the President.
However, historically, some Presidents have played a ministerial role in transmitting Congress's proposed amendments to the states for potential ratification. For example, President George Washington sent the first twelve proposed amendments, including what would become the Bill of Rights, to the states for ratification after Congressional approval. Additionally, in recent history, Presidents have participated in the ceremonial signing of certifications for amendments. For example, President Johnson signed the certifications for the 24th and 25th Amendments, and President Nixon witnessed the certification of the 26th Amendment.
While the President's role in amending the Constitution is not constitutionally defined, their participation in the process has been observed in a ceremonial and ministerial capacity.
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State vs federal government
The relationship between state and federal government is one of the most fundamental aspects of constitutional theory in the US. The US Constitution is designed to give the federal government ultimate authority over a narrow range of matters, with all other powers delegated to the states. The Supremacy Clause of the Constitution (Article VI, Clause 2) establishes that the Constitution, federal laws, and treaties made under its authority are the "supreme Law of the Land", taking priority over conflicting state laws. This means that federal laws can override state laws, and state courts are bound by and subordinate to the supreme law.
However, federal statutes and treaties must be within the parameters of the Constitution and cannot violate constitutional limits on federal power, such as the Bill of Rights. The Tenth Amendment states that the federal government only has the powers delegated to it by the Constitution. The US Supreme Court has the power to reverse the decisions of state supreme courts and interpret the Constitution and federal law, which state courts must accept.
While Congress can pass federal laws that nullify or invalidate state and local laws, it cannot directly modify state laws. It can, however, incentivize states to modify their laws, for example, by putting stronger conditions on federal funding. The anti-commandeering doctrine limits the authority of Congress to directly regulate the operations of state governments, as seen in the case of New York v. United States (1992).
The conflict between federalism and nationalism continues to shape the dynamic between state and federal government, with ongoing debates about the scope of federal powers and the extent to which states can assert sovereign immunity under federal law.
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International influence
The United States Constitution has had a profound impact on the world, influencing later constitutions, legal thinking, and adaptation in emerging nations. Its influence is evident in similarities of phrasing, borrowed passages, and principles such as the rule of law, separation of powers, and recognition of individual rights. The US Constitution's approach to governance, with its emphasis on rule by popular consent and laws drafted by representatives, has been particularly influential.
The US Constitution's global influence began in the mid-19th century, when European colonies, seeking to establish freely elected governments, referenced it as a model. This influence peaked at the turn of the 20th century as former European colonies embraced self-governance and formed federal and parliamentary models of government. Notable figures who drew inspiration from the US Constitution include President of Mexico Benito Juarez, who implemented practices like judicial review when introducing more liberal policies into the Mexican constitution, and nationalists such as Jose Rizal of the Philippines and Sun Yat-sen of China.
In the context of decolonization, the US Constitution played a significant role in shaping the governments of newly independent nations in Africa, the Middle East, and Asia. These countries borrowed from the US Constitution when creating courts, separating powers, and defining the powers of the executive branch. For example, Australian constitutional law was influenced by the US Constitution, adopting a federal system with a senate representing the states and embracing the concepts of separation of powers and judicial review.
However, in recent years, there has been a decreasing reliance on the US Constitution as a model for constitution-writing. A study by Louis in the New York University Law Review found that while the idea of adopting a constitution may still be inspired by the US, the manner in which constitutions are written has evolved. The study also noted that the US Constitution guarantees relatively few rights compared to other countries' constitutions and is one of the few that still includes the right to keep and bear arms.
International institutions and academics in constitutional law also play a role in constitution-making processes worldwide, offering expert advice, promoting dialogue, and lending their expertise to states engaged in drafting or amending their constitutions.
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Frequently asked questions
Yes, a constitutional law can be changed. This process is known as a constitutional amendment. The procedure for amending a constitution varies across countries. For example, in the US, an amendment is proposed by Congress with a two-thirds majority vote in both the House of Representatives and the Senate. In Bulgaria, there are two amendment procedures depending on the part of the constitution to be amended.
The US Constitution has been amended 27 times. The most recent amendment was in 1992, which was the 27th Amendment. This prevented Congress from changing its own compensation during a term in progress.
Changing a constitutional law is generally a difficult process. Written constitutions are harder to change than unwritten ones, which can change gradually and continually in response to changing needs.
The process for changing a constitutional law is known as the amendment process. This typically involves proposing an amendment, which is then ratified by a certain majority. For example, in the US, an amendment is proposed by Congress with a two-thirds majority vote, and it becomes part of the Constitution when it is ratified by three-fourths of the States (38 out of 50).
