Keith Mack
Constitutional law is a fascinating and complex area of study, encompassing the fundamental principles that govern a nation. Revising this area of law can be challenging due to its dynamic nature and the varying procedures for amendment across different jurisdictions. For example, while some countries like Ireland, Estonia, and Australia require constitutional amendments to originate as bills and become acts of parliament, others like the United States follow a different path with amendments proposed as special joint resolutions of Congress. Understanding these nuances is crucial for anyone seeking to grasp the mechanisms of constitutional change. Additionally, the distinction between constitutional amendments and revisions, as highlighted in cases such as Strauss v. Horton, adds another layer of complexity. As such, a comprehensive approach to revising constitutional law involves not only a deep understanding of the legal framework but also a grasp of relevant case law and the ability to navigate the unique processes of each jurisdiction.
| Characteristics | Values |
|---|---|
| Definition of constitutional revision | Changes to a state constitution; the exact definition differs from state to state |
| Difference between constitutional amendment and constitutional revision | A constitutional amendment amends specific articles or sections of a constitution; a constitutional revision is a fundamental and holistic change |
| Example of a constitutional amendment | Proposition 8, which defined marriage as between one man and one woman |
| Example of a constitutional revision | Amendment A, which legalized marijuana and implemented changes to the nature of South Dakota's governmental system |
| Jurisdictional differences in constitutional amendments | Some amendments originate as bills and become laws through acts of parliament; others are joint resolutions of Congress that don't require presidential approval |
| Special procedures for constitutional amendments | Denmark requires a general election and a second parliamentary approval before a referendum; Estonia requires a three-fifths majority in two successive parliamentary complements |
| Eternity clause in constitutional designing | An example is found in the Basic Law, protecting against a future totalitarian regime |
| Constitutional amendment procedure | A bill must be approved by a two-thirds majority in each house to become law immediately; otherwise, it undergoes a referendum process |
| Constitutional revision discourse | The DPR's plan to revise the Constitutional Court Law to address controversial decisions, such as the separation of national and local elections |
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What You'll Learn
Understanding constitutional amendments
The US Constitution is composed of a preamble, seven articles, and 27 amendments. The first ten amendments, ratified on December 15, 1791, are known as the Bill of Rights. The first 52 words of the Constitution introduce the articles and amendments that follow.
The seven articles make up the structural constitution, signed on September 17, 1787, and ratified on June 21, 1788. The articles cover the following topics:
- Legislative Branch
- Executive Branch
- Judicial Branch
- Relationships Between the States
- Amending the Constitution
- Supreme Law
- Ratification
The amendments cover a range of topics, including fundamental freedoms, the right to bear arms, quartering soldiers, searches and seizures, rights of persons, rights in criminal prosecutions, civil trial rights, cruel and unusual punishment, unenumerated rights, rights reserved to the states and the people, suits against states, and the election of the president.
Understanding the constitutional amendments involves comprehending their text, history, and interpretation. It is important to explore the areas of agreement and disagreement surrounding the amendments and how they have been interpreted over time. The amendments are subject to different interpretations and philosophical perspectives, and it is crucial to consider the context and intent behind them.
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Constitutional revisions vs. amendments
Constitutional revisions and amendments are similar but distinct concepts. Both involve changing the constitution, but they differ in terms of scope and process.
An amendment is generally a more limited change that works within the existing framework of the constitution. It can involve adding, reducing, or deleting parts of the text without altering the fundamental principles or basic structure. Amendments typically focus on specific provisions and aim to improve the implementation of the constitution's original purpose. For example, in the United States, amendments are proposed by Congress with a two-thirds majority vote in both the House of Representatives and the Senate, and they become part of the Constitution once ratified by three-fourths of the states.
On the other hand, a revision implies a more substantial change to the constitution. It involves altering fundamental principles, such as the separation of powers or checks and balances, and affects multiple provisions within the document. Revisions can effectively rewrite significant portions of the constitution and change its underlying meaning. The process for revisions can vary and may involve different legislative bodies, constitutional conventions, or voter initiatives, depending on the jurisdiction. For instance, in California, a constitutional revision can be proposed through a legislative process or by a constitutional convention called for by a supermajority of voters.
The key distinction between amendments and revisions lies in their scope and impact. Amendments are often narrower in focus, targeting specific provisions without disrupting the overall structure or principles. Revisions, on the other hand, have a broader reach and can transform the fundamental nature of the constitution by altering multiple provisions simultaneously.
In some cases, the line between amendments and revisions can blur. A series of amendments, or an amendment with far-reaching implications, may effectively act as a revision by significantly altering the constitution's meaning and effect. Determining whether a change is an amendment or a revision can involve quantitative and qualitative tests that assess the extent and impact of the proposed modifications.
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How constitutional changes are recorded
The process of amending a constitution varies across jurisdictions. For example, in the United States, the authority to amend the Constitution is derived from Article V of the Constitution. Amendments are proposed by Congress with a two-thirds majority vote in both the House of Representatives and the Senate, or by a constitutional convention called for by two-thirds of state legislatures. However, no amendments to the US Constitution have been proposed by constitutional convention so far. Once an amendment is proposed by Congress, it is forwarded to the National Archives and Records Administration (NARA) for processing and publication. The NARA's Office of the Federal Register (OFR) adds legislative history notes, publishes the amendment in slip law format, and assembles an information package for the states.
When a state ratifies a proposed amendment, it sends an original or certified copy of the state action to the Archivist of the United States, who is responsible for administering the ratification process. The Archivist maintains records and archives of the amendment, including a list of the states that ratified it. The OFR examines ratification documents for legal sufficiency and an authenticating signature, and maintains custody of the documents until the amendment is adopted or fails. At this point, the amendment becomes an official Article of the Constitution, and the Archivist certifies it.
In most jurisdictions, amendments to a constitution are recorded as revisions to the previous text, with portions of the original text being deleted or new articles inserted. However, a less common method is for amendments to be appended to the end of the main text as special articles of amendment, leaving the original text intact. This method still applies the doctrine of implied repeal, where the amendment takes precedence in the event of a conflict with the original text.
Some constitutions have specific requirements for amending them. For example, the German Weimar Constitution of 1919 allowed deviations from its terms if a law reached the necessary supermajorities in both chambers of parliament, without the deviating law becoming part of the constitution. On the other hand, the postwar 1949 constitution explicitly requires amendments to change the text of the constitution. 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. Additionally, certain chapters and articles of the Ethiopian constitution are almost unamendable, requiring total consensus from the federal regional states and a two-thirds majority in each house of Parliament.
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The role of referendums
Referendums are a direct form of democracy, where a significant final decision is referred to the public, who then vote to decide the outcome. They are generally used to repeal or approve state statutes or amendments to a state constitution. In rare cases, they can also be used to recall or remove an elected official. Referendums are a common feature of constitutional law in many countries, including Australia, Ireland, Switzerland, Denmark, and 49 of the 50 US states.
There are two main types of referendums: mandatory and optional. Mandatory referendums are required by law and are often a legally mandated step for ratifying constitutional changes, international treaties, and certain types of public spending. For example, in Switzerland, a mandatory referendum is required for any constitutional amendments. Financial referendums are another type of mandatory referendum, where certain localities require a referendum for the government to issue bonds, raise taxes above a specific amount, or take on significant debt.
On the other hand, optional referendums are not legally required but can be initiated by the government or, in some cases, other parties. They are often used when there is significant public pressure or when the government is divided on an issue. Optional referendums may or may not be binding, although it can be politically challenging for a government to ignore the outcome. For example, the Brexit referendum in the United Kingdom was an optional referendum that was not legally binding, but the government nevertheless proceeded with the process of withdrawing from the European Union following the vote.
Referendums can be a controversial topic, with critics arguing that they undermine representative government and that voters may not have the necessary information to make informed decisions, especially on complex issues such as constitutional changes or international treaties. There is also a concern that referendums can be used as a political tool by the governing party rather than serving the interests of democracy. Despite these criticisms, referendums remain an essential mechanism for direct public participation in decision-making, particularly on issues of significant constitutional or political importance.
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Case law and litigation
When revising constitutional law, it is important to familiarise yourself with case law and litigation. Case law refers to the rules that appellate judges derive from their interpretation of statutes and other sources. It is a significant part of American law. To revise this area, you should begin by reading the case law. This involves reading the court's written opinion from beginning to end to understand what is happening, who the major parties are, and what they want from the court. You do not need to worry about understanding every detail of the case on your first read-through. Instead, focus on getting a sense of the key players and their objectives. Keep in mind that legal opinions are written for judges, not laypeople or law students.
Once you have a basic understanding of the case, you can start to outline the case's procedural history. This includes understanding how the case moved through the court system, including who filed the original lawsuit, the decision at trial, and any subsequent appeals. This step is crucial as the procedural history determines the litigants' roles and how they are referred to in the written opinion. It can be tricky to discern who is suing whom if a case has been through multiple layers of appeal, as party names may switch depending on who appealed. Therefore, it is important to carefully trace the path the case followed through the court system.
After understanding the basic facts and procedural history, you can begin to analyse the court's holding and identify the most important facts. This may involve re-reading certain sections of the case to correctly determine what was central to the court's reasoning. You should also review any relevant case history, including whether there are any pending appeals, as this can impact the validity of the case law you are revising.
Finally, it is important to validate your case law research. This involves checking whether your case has been reversed, overruled, or superseded by subsequent legal authorities. You can use citator services like Westlaw, Lexis, and Bloomberg to flag cases that are no longer considered good law. However, keep in mind that these services are not perfect and may not always provide comprehensive information. Therefore, it is important to review the cases that negatively impact your case to make an informed decision about its validity.
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Frequently asked questions
A constitutional amendment is written to amend specific articles or sections of a state's constitution, whereas a constitutional revision involves a fundamental and holistic change to a state's constitution.
The process of enacting constitutional amendments varies across jurisdictions. In Ireland, Estonia, and Australia, constitutional amendments originate as bills and become laws through acts of parliament, subject to approval in a referendum. In the United States, a proposed amendment starts as a special joint resolution of Congress, which does not require the President's signature or veto power.
The Constitution of Denmark outlines multiple special procedures for amendments. In Bulgaria, there are two amendment procedures: a normal procedure for minor issues and a special procedure for revising international borders, changing the form of government, or amending specific articles.
