Kara Sears
The process of amending a constitution varies across different countries. In the United States, the Constitution has been amended 27 times since it was drafted in 1787, with amendments proposed by two-thirds of both houses of Congress and then ratified by three-fourths of the state legislatures. Other countries like Bulgaria, Austria, and Ethiopia have different procedures, with Bulgaria having a normal and special amendment procedure, Austria allowing any parliamentary legislation to be designated as constitutional law if certain conditions are met, and Ethiopia requiring a two-thirds majority of its regions and a joint session of the Federal Parliamentary Assembly to make changes. Italy and the Netherlands also allow for constitutional changes through referendums or simple majority votes in their legislatures, respectively. The amendment process is often challenging and time-consuming, and it is meant to ensure that only significant changes affecting all citizens are made to a nation's fundamental laws.
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What You'll Learn
The US Congress and the President
The process of amending the US Constitution is a difficult and time-consuming endeavour. The US Constitution has been amended only 27 times since it was drafted in 1787, and the process is outlined in Article V of the Constitution.
The US Congress plays a crucial role in proposing amendments to the Constitution. A proposed amendment must be passed by a two-thirds majority vote in both the House of Representatives and the Senate. This is a significant hurdle, as it requires strong support for the amendment across both chambers of Congress. Once an amendment is approved by Congress, it does not require the signature or approval of the President. The joint resolution is then forwarded directly to the National Archives and Records Administration (NARA) for processing and publication.
It is important to note that the President does not have a constitutional role in the amendment process. While federal legislation typically requires the President's signature or veto, this is not the case for constitutional amendments. The Supreme Court affirmed this in Hollingsworth v. Virginia (1798), confirming that constitutional amendments do not need the President's approval or veto.
After Congress proposes an amendment, the Archivist of the United States, who heads NARA, is responsible for administering the ratification process. The Archivist has delegated many duties to the Director of the Federal Register, who follows established procedures and customs.
The final step in the amendment process is ratification. An amendment must be ratified by three-fourths of the states (38 out of 50) to become part of the Constitution. This can be achieved through the legislatures of the states or ratifying conventions in three-quarters of the states. This process has only been used once in US history, in the 1933 ratification of the Twenty-First Amendment.
While the US Congress and the President have distinct roles in the amendment process, it is worth noting that the President's influence is limited to their political influence over Congress. The President cannot directly propose or veto constitutional amendments.
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State Legislatures and the People
The process of amending the United States Constitution is deliberately difficult and time-consuming. The Constitution grants the authority to propose amendments to Congress, with a two-thirds majority vote required in both the House of Representatives and the Senate. Notably, the President does not have a constitutional role in this process.
However, there is another option for initiating the amendment process: two-thirds of state legislatures can call for a constitutional convention to propose amendments. While this has never happened, it remains a significant mechanism for state legislatures and the people they represent to initiate constitutional change.
State legislatures play a crucial role in ratifying proposed amendments. After an amendment is proposed by Congress or a constitutional convention, it must be ratified by the legislatures of three-fourths (38 out of 50) of the states to become part of the Constitution. This ratification process empowers state legislatures to shape the Constitution and ensure it reflects the values and interests of their states.
Additionally, state legislatures can influence constitutional change by responding to petitions from their constituents. Citizens can petition their representatives to propose new laws or amendments, and state legislators can introduce these proposals in their respective chambers. While this process starts at the state level, it can ultimately lead to changes in federal law and even the Constitution.
In conclusion, while the process of amending the Constitution is challenging, state legislatures and the people play a vital role in initiating, ratifying, and influencing constitutional change. Through their representation in state legislatures and their power to petition, the people can shape the Constitution to reflect their values and protect their rights.
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The UK Parliament and the European Convention on Human Rights
The European Convention on Human Rights (ECHR) is an international human rights treaty that protects the rights of everyone within the 46 states that belong to the Council of Europe. The Council of Europe was founded after World War II to protect human rights and the rule of law, and to promote democracy. The ECHR came into force in 1953, with the UK being the first country to ratify it in 1951. The ECHR is divided into 14 articles, each representing a basic human right or freedom, including the right to life, liberty, fair trials, freedom of speech and assembly, and the right to free and fair elections.
The UK gives effect to the ECHR through the Human Rights Act 1998, which allows people in the UK to bring claims in UK courts rather than having to take cases to the European Court of Human Rights in Strasbourg. The Human Rights Act also requires UK courts to interpret legislation in a way that is compatible with the ECHR, and to issue a 'declaration of incompatibility' if a law is incompatible. This declaration does not affect the validity of the legislation but provides a mechanism for the government to resolve the incompatibility.
The ECHR has stronger protection in the devolved legislatures of Scotland, Wales, and Northern Ireland, where courts can strike down laws passed by the relevant devolved legislature that violate ECHR rights. However, they cannot strike down an Act of Parliament. The UK regularly submits reports to the UN and the Council of Europe on its implementation of human rights judgments and its compliance with international human rights obligations.
Since the Human Rights Act came into force in 2000, there has been a downward trend in the number of judgments finding violations of ECHR rights by the UK. As of the end of 2023, the European Court of Human Rights had issued 330 judgments finding at least one violation of an ECHR right against the UK and 148 judgments finding no violation. One of the most controversial cases concerned prisoners' voting rights, where the Court held that the UK was in breach of Article 3 Protocol 1 by banning prisoners from voting in any election.
The State Legislature's Power to Make Laws
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The Supreme Court and Judicial Review
In the United States, the Supreme Court is the highest court in the land, and it is the court of last resort for those seeking justice. The Supreme Court plays a crucial role in the constitutional system of government through its power of judicial review.
Judicial review is the legal authority of a court to determine if a statute, treaty, or administrative regulation contradicts or violates the provisions of existing law, a state constitution, or the United States Constitution. While the concept of judicial review is not explicitly defined in the U.S. Constitution, its authority has been inferred from the structure, provisions, and history of the Constitution.
The Supreme Court has the ultimate power of judicial review, also known as the ability to declare a Legislative or Executive act in violation of the Constitution. This power is not explicitly mentioned in the text of the Constitution but is derived from Article III and Article VI. The Supreme Court has the final appellate jurisdiction in all cases arising under the Constitution, and it ensures that each branch of government respects its limits.
The history of judicial review in the United States can be traced back to state court cases before the Constitutional Convention. The first American decision to recognize the principle of judicial review was Bayard v. Singleton in 1787, decided by the predecessor of the Supreme Court of North Carolina. Notable early state cases involving judicial review include Commonwealth v. Caton (Virginia, 1782), Rutgers v. Waddington (New York, 1784), and Trevett v. Weeden (Rhode Island, 1786).
The Supreme Court has played a significant role in confirming the inferred constitutional authority for judicial review. Two landmark decisions by the Court served to establish this authority. In 1796, Hylton v. United States was the first case where the Supreme Court directly addressed the constitutionality of an act of Congress, the Carriage Act of 1794, which imposed a "carriage tax". The Court performed judicial review of the plaintiff's claim that the carriage tax was unconstitutional.
From 1960 to 2019, the Supreme Court held 483 laws unconstitutional in whole or in part, demonstrating its active role in interpreting and safeguarding the Constitution through judicial review.
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The Indian Parliament and the Basic Structure
The Indian Parliament is the supreme legislative body of India and consists of two houses, the Lok Sabha and the Rajya Sabha, with the President of India acting as their head. The Parliament meets at Sansad Bhavan in New Delhi and represents the largest democratic electorate in the world, with 968 million eligible voters in 2024. The President is elected by the elected members of the Parliament and the state Legislative Assemblies and serves for a five-year term.
The Lok Sabha, or the lower house, has 543 members who are directly elected by Indian citizens on the basis of universal adult franchise, representing parliamentary constituencies across the country. The Rajya Sabha, or the Upper House, is a permanent body not subject to dissolution, with one-third of its members retiring every second year. The Rajya Sabha can have a maximum of 250 members, with 233 elected from states and union territories, and 12 nominated by the President from a list of individuals with expertise in various fields.
The Indian Parliament has a wide array of powers and functions, including the power to amend the Constitution of India. Any amendments must be passed in both the Lok Sabha and the Rajya Sabha to be effective. The Parliament can also alter, decrease, or increase the boundaries of states and union territories, and pass laws on items in the State List under certain circumstances, such as during a state of Emergency or when a state is under President's Rule.
While the Indian Parliament has the power to amend the Constitution, it is not unlimited. The Supreme Court has held that Parliament cannot amend the "basic structure" of the Constitution, which includes principles such as the supremacy of the Constitution, the rule of law, the independence of the judiciary, the separation of powers, federalism, secularism, and the principle of free and fair elections.
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Frequently asked questions
The US Constitution can be amended by Congress with a two-thirds majority vote in both the House of Representatives and the Senate. Alternatively, two-thirds of state legislatures can call for a constitutional convention. Amendments are then ratified by three-quarters of the states.
The US Constitution has been amended 27 times since 1787.
The Austrian Constitution is liberal in terms of amendments. Any parliamentary legislation can be designated as "constitutional law" if a supermajority and other formalities are met. Amendments can take the form of changes to existing acts or entirely new acts.
The Indian Constitution has been amended 106 times since 1950. However, the Supreme Court held that Parliament's power to amend does not extend to changing the basic structure of the Constitution.
