Constitution Amending Procedures Essay ⋆ Political Science Essay Examples ⋆ EssayEmpire

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From early Greek history, as scholar Melissa Schwartzberg has observed, democracies were associated with constant legal change. Like legislation, constitutions also require change as circumstances alter and as flaws reveal themselves.

Types Of Amending Processes

For mal amending processes emerged in America with the birth of written constitutions. Although less than 4 percent of modern nations with written constitutions lack a constitutional amending process, the processes vary widely and require varying levels of difficulty. Donald Lutz divided such constitutions into four progressively more difficult categories. Parliamentary systems with written constitutions such as Austria, Botswana, Brazil, Germany, India, Kenya, Malaysia, New Zealand, Papua New Guinea, Portugal, and Samoa allow a single vote of the national legislature to enact such changes. Nations such as Argentina, Belgium, Columbia, Costa Rica, Finland, Greece, Iceland, Luxembourg, and Norway require at least two votes of the legislature with an intervening election. Chile, France, Italy, Spain, and Sweden permit bypassing the legislature through a referendum, whereas Australia, Denmark, Ireland, Japan, Switzerland, the United States, and Venezuela require a referendum or its equivalent. Lutz’s research, on both national constitutions and on U.S. state constitutions, shows that longer documents are amended more frequently than shorter ones. Documents that are difficult to change also promote higher levels of judicial interpretation.

A convention of delegates from the states authored the U.S. Constitution. This distinguished the founding of United States from ancient states where laws had been created by a single lawgiver and were sometimes considered inviolate, and from those, like Great Britain, which traced its origins to a more continuous series of immemorial customs and usages that could be changed by new ones.

Constitutional Mechanisms

Amending processes seek to promote deliberation and reflect consensus; federal systems also provide input for national and subnational actors. In the United States, for example, these goals are reflected in the mechanisms that Article V of the U.S. Constitution established for proposing and ratifying amendments. Two-thirds of the state legislatures under the Constitution have never yet requested that Congress call a convention to propose amendments. Instead, two-thirds majorities in both houses of Congress have proposed all twenty-seven U.S. amendments. They have all been ratified by three-fourths of the states, acting in all cases but one through their legislatures.

Entrenchment Clauses

Some constitutions attempt to entrench certain institutions or values against regular alteration. Article V of the U.S. Constitution, for example, prohibits any state from being deprived of its equal representation in the U.S. Senate without its consent. The U.S. Constitution does not mention any other substantive limits on the process, but courts in some countries—India and Germany, for example—have struck down some proposed constitutional changes as inconsistent with the document as a whole, and hence “unconstitutional.”

Judicial Decisions Relative To The Amending Process

Kemal Gozler has observed that the Turkish constitutions of 1961 and 1982, the Chilean Constitution of 1980, and the Romanian Constitution of 1991 specifically empowered constitutional courts to review the content of constitutional amendments, whereas others are silent on the subject. The U.S. Supreme Court has never invalidated an amendment on the basis of its substance, and since Coleman v. Miller in 1939, the Court has generally deferred to Congress in ascertaining whether amendments have been legitimately ratified.

Bibliography:

Dellinger, Walter. “The Legitimacy of Constitutional Change: Rethinking the Amending Process.” Harvard Law Review 97 (December 1983): 280–432.
Gozler, Kemal. Judicial Review of Constitutional Amendments. Bursa, Turkey: Ekin Press, 2008.
Grimes, Alan P. Democracy and the Amendments to the Constitution. Lexington, Mass.: Lexington Books, 1978.
Kyvig, David E. Explicit and Authentic Acts: Amending the U.S. Constitution, 1776–1995. Lawrence: Kansas University Press, 1996.
Levinson, Sanford, ed. Responding to Imperfection: The Theory and Practice of Constitutional Amendment. Princeton: Princeton University Press, 1995.
Lutz, Donald S. “Toward a Theory of Constitutional Amendment.” American Political Science Review 88 (June 1994): 355–370.
Schwartzberg, Melissa. Democracy and Legal Change. New York: Cambridge University Press, 2007.
Vile, John R. Encyclopedia of Constitutional Amendments, Proposed Amendments, and Amending Issues, 1789–2002, 2nd ed. Santa Barbara, Calif: ABC-CLIO, 2003.
The Constitutional Amending Process in American Political Thought. Westport, Conn.: Praeger, 1992.
Contemporary Questions Surrounding the Constitutional Amending Process. Westport, Conn.: Praeger, 1993.
“Three Kinds of Constitutional Founding and Change: The Convention Model and Its Alternatives.” Political Research Quarterly 46 (December 1993): 881–895.