As highlighted above, the design of the provision on constitutional amendments is elementary for striking the balance between a flexible and stable constitution. Beyond, an amendment procedure might want to somehow reflect and maintain the initial process of making the constitution. Participatory and inclusive processes are considered the norm in today’s constitution making process including a referendum at its end, thereby voicing the need to have the constitution directly approved by the popular sovereign. Taking this perspective, one might ask whether also the amendment procedure should include deliberative elements and the electorate rather than regarding parliament as the sole “guardian of the constitution”.
Many constitutions require additional bodies or institutions to be involved in the process of constitutional amendments and/or partly require a specific procedure to be applied. Through quite individually tailored approaches, countries tried to meet their own balance between flexibility and stability of their constitutions. The effect of one option in the one or other direction cannot be precast without knowing the political culture and landscape of a country. E.g. in the US, due to the electoral system and the spectrum of political parties, the 2/3 majority threshold as the first part of the constitutional amendment procedure already proves to be hard to overcome, whereas the same threshold is not a high barrier for amending the constitution in South Africa. Similarly, the requirement of a national referendum as such might be an exceptional burden to some countries, whereas others have a well established system of direct democracy even as part of the ordinary legislative process (Switzerland). Hence, practical experiences from other countries should be approached with caution before taken over blindly. To a large extent, they confirm that the expected effects are to a lesser degree the result of a specific norm, but of the political landscape.
Despite the vast variety of different provisions on constitutional amendment throughout the globe, one might identify some rough models that are commonly applied in different shades. Those models might serve as an initial stimulus on the drafter’s search for the adequate individual solution in their respective countries. In some countries, a various options can be applied alternatively.
(a) Constitutional Amendment trough a qualified majority only
One common way to amend the constitution is to increase the threshold of consent within parliament compared to ordinary legislature. Instead of a 50% + 1 majority, a 2/3, 3/5 or 3/4 majority is required.
Constitution and state government; Provided, That the same, whenever formed, shall be republican, and not repugnant to the constitution of the United States; and that the legislature of said state shall never interfere with the primary disposal of the soil by the United States, nor with any regulations Congress may find necessary for securing. If there is a right not listed in the Constitution it is assumed to be a person's right. The state can choose how to teach students in their state. You cannot sue your state. The electoral ballets are different for President and Vice President to avoid confusion. You cannot enslave or be enslaved by anyone. Download a free copy of the US constitution as a PDF. Includes the Bill of Rights and amendments. Full text of United States Consitution. Suitable for printing. These images are in the public domain and no permission is required to use them. Please credit the National Archives as the original source. The Declaration of Independence High-Resolution Declaration Image (1.43 MB) This image is of the actual Declaration of Independence parchment.
(b) Constitutional Amendment requiring the direct involvment of the people through referendum
In addition to parliamentary majority, some constitutions require for every constitutional amendment the direct participation of the people in a referendum. Again other constitutions ask for a referendum only if specific provisions are to be amended (see below). Concerns have been raised that this concept of having a referendum might not fit very well for ensuring constitutional protection of minorities due to its majoritarian bias. To meet this concern, some (federal) constitutions therefore require not only a nationwide majority in a referendum, but also that in the majority of sub-units the respective people have voted in favour of a constitutional amendment.
(c) Constitutional Amendment requiring the indirect involvment of the people through elections
A more indirect way of involving people as part of the process for constitutional amendments is to allow for parliamentary elections between the adoption and the coming into force of an amendment. The legislature is either immediately dissolved after adoption of the amendment or the draft for amendment is put on hold until the next regular elections. In both cases, the newly elected legislature has to pass the law without material alterations. Through this process the constitutional amendment might become part of the electoral campaigns for the legislature. It is left with the individual voter to decide in how far the suggested amendment might impact his voting decision. The downside of such an option might be that either the constitutional amendment adumbrates other important political issues normally relevant in elections or in turn the amendment might be sidelined in a general campaign. Two further thoughts might be relevant for the first alternative mentioned above: For each Member of Parliament, the immediate dissolution of the legislature might also put his / her membership at risk in the course of new elections and therefore might influence his / her decision to agitate for an amendment. In addition, elections are a quite costly to run and might cause financial challenges if triggered too often.
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Constitutional Provisions requiring the straight or indirect involvement of the people as part of the amendment process
Filmora scrn torrent mac piratebay. (d) Institutions or parts thereof might trigger the need for public participation through referendum while amending the constitution.
Another concept being applied in some constitutions is to allow a governmental institution to decide whether an amendment should also be subject to a referendum. E.g., a fraction of parliament might decide to put a constitutional amendment passed by legislature for referendum. A parliamentarian minority is thereby given the option to let the people decide against a constitutional referendum that it could not prevent within the legislature. It has to be carefully balanced in how far such an opportunity allows for a wider and more inclusive democratic participation or rather permits a small group in opposition to stalemate a decision making process.
A quite antipodal approach is chosen by the French Constitution. It requires in general a referendum for a constitutional amendment after the bill has been adopted by the legislature. However, for an amendment initiative initiated by the executive, the president might refuse submitting it for referendum and ask the legislature convened in congress (the two chambers sitting together) to pass the bill by a three-fifth majority.
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Constitutional Provisions where a referendum might be triggered by other institutions / parts thereof as part of the amendment process
(e) Involvement of representative bodies in a federal system
Federal constitutions require the sub-units to be involved in the amendment procedure at least through one representative body. Since an amendment of the constitution might negatively impact the pact between the national level and the sub-unit level, the two parties to the pact (national level and sub-national levels) needs to agree at least insofar. Generally, sub-units are represented at the national level through a second chamber in the legislature and need to be involved in the constitutional amendment procedure, at least if provisions that affects the sub-units interest are involved. In some federal countries, the approval from a certain percentage of sub-unit parliaments is needed as an additional requirement.
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Constitutional Provisions requiring the consent of a body representing the sub-units as part of the amendment process
(f) Involvement of a 2nd chamber in other than federal countries
Even in non-federal system with a bicameral legislature, regions are often represented in a second chamber that might be involved in the amendment procedure. However, its lack of consent is only seldom an absolute impediment for the amendment of the constitution. This holds also true for those second chambers in which other interest groups are represented.
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Constitutional Provisions that require the involvement of an additional representative body as part of the amendment process
(g) Time specific limitations on constitutional amendments
Some constitutions only allow for their revision after a specific period of time had lapsed, sometimes several years. Such an imposed form of stability on the constitution might turns out to be helpful to allow for a proper implementation, precluding ongoing discussions against the amendment. Especially for constitutions that have been freshly adapted or completely revised after a situation of conflict such a respite might be useful to provide time for stability and a smooth start. Without being able to precast the future, on the other hand, this kind of moratorium might also overly burden a society to continue with a constitution that had become inadequate. It might be advisable to allow at least for consensus driven amendments in those circumstances.Another type of specific time limitation might be helpful to avoid constitutional amendments driven by individuals in government: Any constitutional amendment that addresses the status of individuals or a group of individuals only become effective for those not yet holding the very position. E.g. an extension of the president’s term of office does not apply for the person holding that office while the constitution had been amended.
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Constitutional Provisions requiring time specific limitations
(h) Majority Supported by All Parties in Parliament
Although –to the author’s knowledge- not yet tested in constitutional reality, the following consensus driven approach might be worth considering: Especially in post-conflict countries in which a constitution emerged as a result of cautious negotiations from various groups, one might delink the amendment of the constitution from a static super-majority approach by focusing on an all party parliamentary support. Under this concept, each party represented in parliament has to vote in favour of the amendment by a majority of its members sitting in parliament. A wider range of political opinions is thereby included in the process causing also a more vivid parliamentary debate since a larger range of supporters need to be convinced to vote in favour of the amendment. Counting in numbers, less parliamentarian votes are needed to amend the constitution compared to a 2/3 majority requirement although all groups consented. In contrast, if strong parties with a strong party discipline are praevalent, a de facto consensus of all members of parliament might be necessary.
Since 1789 the Constitution has been amended 27 times, most recently in 1992. The first ten amendments were made in 1791, and list basic rights that many people had wanted to include in
the original Constitution, but had left out in order to persuade all the states to ratify it. These amendrnents are together known as the Bill of Rights.Among other things, the Bill of Rights promises citizens the right to free speech (= the right to say what they want without the government trying to stop them), freedom ofreligion, the right not to be arrested or searched without a good reason, and theright of anyone accused of a crime to have a fair trial.
Some changes to the Constitution have been more successful than others. The First Amendment's guarantee of freedom of speech and religion is an essential principle of American life. The Second Amendment, which gives people the right to carry guns, is now the subject of public debate and many people are opposed to it. The 18th Amendment, passedin 1919, created Prohibition, making it illegal for people to make or buy alcoholic drinks. However, this measure was not successful, and in 1933 the 21st Amendment repealedthe 18th, so that alcohol became legal again.
Some amendments reflect changes in American society. The Constitution was written by white men, mainly to protect their rights. Following the Civil War, the 13th Amendment (1865) and the 15th Amendment (1870) gave the same rights to people of all races. In 1920 the 19th Amendment gave women the right to vote. Changing the Constitution requires wide support of people elected to public offices. In the 1970s the Equal Rights Amendment, which said that women had the same rights as men, was passed by Congress but failed to be ratified by the required number of states and so was defeated.
Interpreting the Constitution
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In 1803 the Supreme Court made a very important decision in the case Marbury v Madison. The Court said that a law that was relevant to the case went against what was contained in the Constitution. In this way the Supreme Court gave itself the power to decide on the constitutionalityof any law. If theCourt decides that a law is unconstitutional,it cannot be used any more.
Experts have different opinions about how to decide whether a law is constitutionalor not. Some believe it is better to follow exactly what the Constitution says. Others think that it is necessary to consider what was in the minds of the people who wroteit. For instance, the Second Amendment gives people the right to carry guns, and some people say that laws that limit this right are unconstitutional. Others believe that the Amendment was written so that Americans could defend themselves against a possible attack bythe British, and since that is not likely to happen today, laws controlling guns would not go against the intentions ofthe people who wrote the Constitution.
The Bill of Rights
The Constitution has been amended 17 times since 1789, and it is likely to be further revised in the future. The most sweeping changes occurred within two years of its adoption. In that period, the first 10 amendments, known collectively as the Bill of Rights, were added. Congress approved these amendments as a block in September 1789, and 11 states had ratified them by the end of 1791.
Much of the initial resistance to the Constitution came not from those opposed to strengthening the federal union but from statesmen who felt that the rights of individuals must be specifically spelled out. One of these was George Mason, author of the Declaration of Rights of Virginia, which was a forerunner of the Bill of Rights. As a delegate to the Constitutional Convention, Mason refused to sign the document because he felt it did not protect individual rights sufficiently. Indeed, Mason's opposition nearly blocked ratification by Virginia. Because of similar feelings in Massachusetts, that state conditioned its ratification on the addition of specific guarantees of individual rights. By the time the First Congress convened, sentiment for adoption of such amendments was nearly unanimous, and the Congress lost little time in drafting them.
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These amendments remain intact today, as they were written two centuries ago. The first guarantees freedom of worship, speech, and press, the right of peaceful assembly, and the right to petition the government to correct wrongs. The second guarantees the right of citizens to bear arms. The third provides that troops may not be quartered in private homes without the owner’s consent.The fourth guards against unreasonable searches, arrests, and seizures of property.
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The next four amendments deal with the system of justice. The fifth forbids trial for a major crime except after indictment by a grand jury. It prohibits repeated trials for the same offense, forbids punishment without due process of law, and provides that an accused person may not be compelled to testify against himself. The sixth guarantees a speedy public trial for criminal offenses. It requires trial by an unbiased jury, guarantees the right to legal counsel for the accused, and provides that witnesses shall be compelled to attend the trial and testify in the presence of the accused. The seventh assures trial by jury in civil cases involving anything valued at more than 20 U.S. dollars. The eighth forbids excessive bail or fines, and cruel or unusual punishment.
The last two of the 10 amendments contain very broad statements of constitutional authority. The ninth declares that the listing of individual rights is not meant to be comprehensive, that the people have other rights not specifically mentioned in the Constitution. The tenth provides that powers not delegated by the Constitution to the federal government nor prohibited by it to the states are reserved to the states or the people.