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Constitutional amendment
A constitutional amendment is a formal change to the text of the written constitution of a nation or state. In many jurisdictions the text of the constitution itself is altered; in others the text is not changed, but the amendments change its effect. 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 (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, as in Australia, or none, as in Japan, have been passed over a period of several decades. In contrast, the constitution of the U.S. state of Alabama has been amended over 800 times since 1901.
Constitutional amendment
Constitutional amendment Bulgaria Under the current Constitution of Bulgaria (1991), there are two procedures for amendment, depending on the part of the constitution to be amended:[2] Normal amendment procedure (Articles 153156): the Parliament can amend the Constitution for minor issues with a two-thirds majority. This shall be done in three successive readings. Special amendment procedure (Articles 157163): this procedure is the only way to revise the international borders of Bulgaria; change the form of government in the country; change the form in which the Constitution and international treaties are applied in Bulgaria (Article 5) or suspend citizens' rights. When such amendment is needed, the Constitution envisages an election for Great National Assembly, which consists of 400 deputies, with 200 elected by proportional vote and 200 elected by the first-past-the-post method. Then the amendments to the Constitution are passed by two-thirds majority in three successive readings. This procedure is viewed by some critics as two slow and ineffective.[3] 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.[4] It is the only type of legislation that does not require the signature of the President to become law.[5] Furthermore, it is the only type of legislation the President cannot veto.[6] 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 40% 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.[7] Italy The Constitution of Italy can be modified by the Parliament: a constitutional bill, approved by the simple majority of both the Houses, has to be newly approved by them at least 3 months later. If two thirds of the deputies and two thirds of senators vote in favor, the bill comes in effect. If the bill is approved only by the majority of the members of the Houses, a referendum can take place, if 500,000 people, or one fifth of the members of a House, or 5 out of 20 regional legislatures require it in the three months after the approval. However, the proposal becomes law after the second approval. If it is rejected in the referendum, it is repealed. Each regional legislature or 50,000 people can propose bills to Parliament. Constitutional bill is required to amend the national Constitution, to amend the Constitutions of autonomous regions (Sardinia, Sicily, Aosta Valley/Valle d'Aoste, Trentino-Alto Adige/Sdtirol and Friuli-Venezia Giulia), to put into effect some provisions of the Constitution (e.g. the functioning of the Constitutional Court) and to pass a law that will be considered as a part of Constitution. A similar procedure is required to amend regional Constitutions of non-autonomous regions. In place of national Parliament approvals and referendums, regional legislatures approvals and regional referendums are required. Regional Constitution can not contrast with national Constitution, while Constitutions of autonomous regions are
Constitutional amendment considered as a part of it. Each constitutional bill approved by Italian Parliament, has met the two third majority, except in 2001 and 2006, when referendums took place. The constitutional bill approved in 2001, that has increased the powers of the Regions, was the only one that has been approved by a referendum in Italy.
United States
Federal constitution 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: Two-thirds (supermajority) vote of members presentassuming that a quorum existsin both the Senate and the House of Representatives of the United States Congress; OR By a Two-thirds (supermajority) vote of a national convention called by Congress at the request of the legislatures of at least two-thirds (at present 34) of the states. All thirty-three 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 U.S. 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 conventionif permitted to assemblemight stray to include issues above and beyond just the direct election of U.S. 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 (as determined by Congress): 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 Congressif it so desirescould 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. An amendment becomes operative as soon as it reaches the three-fourths of the states threshold. Then, once certified by the Archivist of the United States, it officially takes its place as an article of the Constitution.
Constitutional amendment State constitutions State constitutions in the U.S. are amended on a regular basis.[8] 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 contain extensive detail as a reflection of the loss of public confidence in state legislatures. In addition, state constitutions are often easier to amend than the federal constitution, in part because of popular concern about corruption and mismanagement in state government. Individual states differ in the difficulty of constitutional amendments.[9] Some states allow for initiating the amendment process through action of the state legislature or by popular initiative. Political scientists find that the key factor in the rate at which constitutional amendments are made, and at which the constitution stands before it is significantly revised, is the length of the document. When an attempt is made to settle difficult political matters by placing them into a state constitution, this may lead to many battles and attempts to amended. 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 many 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 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 (referendum) on the question.
Constitutional amendment 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. (This is done by precedent but is not required by law.) After the election, the proposed amendment must go through the same procedure (absolute majority on three separate readings). 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 unlimitedthat 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 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-third 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 electors.
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.[10] 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. 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
Constitutional amendment 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 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.[11]
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. Under Article 79 (3) of the German Basic Law, modification of the federal nature of the country or abolition or alteration of Article 1 (human dignity, human rights, immediate applicability of fundamental rights as law) or Article 20 (democracy, republicanism, rule of law, social nature of the state) is forbidden. This is supposed to prevent a recurrence of events like those during the Nazi Gleichschaltung, when Hitler used formally legal constitutional law to de facto abolish the constitution. The final article of the Constitution of Italy (Article 139, Section 2, Title 6 of Part 2) holds the "form of Republic" above amendment. Article 4 of Part 1 of the Constitution of Turkey states that the "provision of Article 1 of the Constitution establishing the form of the state as a Republic, the provisions in Article 2 on the characteristics of the Republic, and the provision of Article 3 shall not be amended, nor shall their amendment be proposed". Article Five of the United States Constitution, ratified in 1788, prohibited any amendments before 1808 which would affect the foreign slave trade, the tax on the slave trade, or the direct taxation provisions of the constitution. The foreign slave trade was outlawed by an act of Congress rather than by a constitutional amendment shortly after that clause expired in 1808. Also, no amendment may affect the equal representation of states in the Senate without their own consent. If the Corwin amendment had passed, any future amendment to the Constitution "interfering with the domestic institutions of the state" (i.e., slavery) would have been banned. Chapter 6, Article 120, section c of the Constitution of Bahrain prohibits "an amendment to Article 2 [State Religion, Shari'a, Official Language] of this Constitution, and it is not permissible under any circumstances to propose the amendment of the constitutional monarchy and the principle of inherited rule in Bahrain, as well as the bicameral system and the principles of freedom and equality established in this Constitution". Article 112 of the Constitution of Norway provides that amendments must not "contradict the principles embodied in this Constitution, but solely relate to modifications of particular provisions which do not alter the spirit of the Constitution". Section 284 of Article 18 of the Alabama State Constitution states that legislative representation is based on population, and any amendments are precluded from changing that. Part 4, Section, Article 288 of the Constitution of Portugal contains a list of 15 items that amendments "must respect"; Article 288 itself can, however, be amended. The Supreme Court of India in the Kesavananda Bharati case held that no constitutional amendment can destroy the basic structure of the Constitution of India.
Constitutional amendment Article 60 of the current 1988 Constitution of Brazil forbids amendments that intend to abolish individual rights or to alter the fundamental framework of the Statethe Separation of Powers and the Federal Republic. Article 152 of the Constitution of Romania on the "limits of revision" prohibits amendments regarding the independence and territorial integrity of Romania, the independence of justice, the republican form of government, political pluralism, and the official language. It also forbids amendments which restrict civil rights and liberties.
Further reading
"Amendment [12]", by Peter Suber. From Philosophy of Law: An Encyclopedia, edited by Christopher Berry Gray, Garland Pub. Co., 1999, vol. I, pp.3132.Bill West 1985- 2003. Vol 98-85-96-6 Law .edu.216 Esd The Paradox of Self-Amendment: A Study of Logic, Law, Omnipotence, and Change [13], by Peter Suber. Full-text of the book, now out of print. Peter Lang Publishing, 1990. For an essay-length synopsis, see "The Paradox of Self-Amendment in American Constitutional Law [14]", Stanford Literature Review, 7, 12 (SpringFall 1990) 5378. "Population Changes and Constitutional Amendments: Federalism versus Democracy [15]", by Peter Suber. University of Michigan Journal of Law Reform, 20, 2 (Winter 1987) 409490. "Unamendments [16]", by Jason Mazzone, Iowa Law Review, Vol. 90, p.17471855, 2005.
References
[1] See by way of example the 21st Amendment to the U.S. Constitution on the repeal of prohibition. Section 1 of the article repeals the 18th Amendment. [2] Bulgarian constitution - text (http:/ / www. parliament. bg/ ?page=const& lng=bg) [3] RZS political party on the amendment of the Constitution (http:/ / www. dnevnik. bg/ izbori2009/ parlamentarni_izbori/ 2009/ 07/ 06/ 750462_rzs_goliamata_ni_bitka_e_za_svikvane_na_veliko_narodno/ ); (http:/ / www. blitz. bg/ news/ article/ 54617); (http:/ / www. capital. bg/ show. php?storyid=232491) [4] Constitution of the Czech Republic, Art. 39 [5] Constitution of the Czech Republic, Art. 50 [6] Constitution of the Czech Republic, Art. 62 [7] Chapter 15 of the constitution of Estonia [8] David R. Berman, State and Local Politics (7th ed.), M.E. Sharpe (2000), pp. 77-78 (http:/ / books. google. com/ books?id=P11rQi0MhnUC& pg=PA77& dq=each+ u. s. + state+ has+ a+ different+ process+ for+ constitutional+ amendment& hl=en& sa=X& ei=_yfTUqGbJdfdoATryYDQDw& ved=0CCwQ6AEwADgK#v=onepage& q=each u. s. state has a different process for constitutional amendment& f=false) [9] George Alan Tarr, ed. Constitutional Politics in the States, Greenwood Publishing Group (1996), pp. 40-45 (http:/ / books. google. com/ books?id=DJVIgRtDzgEC& pg=PA44& dq=each+ u. s. + state+ has+ a+ different+ process+ for+ constitutional+ amendment& hl=en& sa=X& ei=ECjTUum4EpfmoATG2IDgDA& ved=0CEoQ6AEwBTgU#v=onepage& q=each u. s. state has a different process for constitutional amendment& f=false) [10] Constitution of the Republic of South Africa, chp. 4, 74. [11] Constitution of the Republic of South Africa, chp. 4, 81. [12] http:/ / www. earlham. edu/ ~peters/ writing/ amdt. htm [13] http:/ / www. earlham. edu/ ~peters/ writing/ psa/ index. htm [14] http:/ / www. earlham. edu/ ~peters/ writing/ psaessay. htm [15] http:/ / www. earlham. edu/ ~peters/ writing/ acessay. htm [16] http:/ / ssrn. com/ abstract=803864
Constitutional amendment
External links
Report on Constitutional Amendment (http://www.venice.coe.int/docs/2010/CDL-AD(2010)001-e.asp), Venice Commission (2009)
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License
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