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From Wikipedia, the free encyclopedia

A constitutional amendment is a change to the constitution of a nation or a state. In jurisdictions with "rigid" or "entrenched" constitutions, amendments require a special procedure different from that used for enacting ordinary laws.

Some constitutions may only be amended with the direct consent of the electorate in a referendum. In some states a decision to submit an amendment to the electorate must first be taken by the legislature. In others a constitutional referendum may be triggered by a citizen's initiative. The constitutions of the Republic of Ireland, Denmark, Japan and Australia are amended by means of a referendum first proposed by parliament. The constitutions of Switzerland and of several states in the United States may be amended through the process of popular initiative.

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Successive majorities

Some jurisdictions require that an amendment be approved by the legislature on two separate occasions during two separate but consecutive terms, with a general election in the interim. Under some of these constitutions there must be a dissolution of the legislature and an immediate general election on the occasion that an amendment is adopted for the first time. Examples include the constitutions of Iceland, Denmark, the Netherlands and Norway. This method is also common in subnational entities, such as the US states Wisconsin, Iowa, and Vermont.

Special requirements in federations

An amendment to the United States Constitution must be ratified by 3/4 of the state legislatures, or of constitutional conventions specially elected in each of the states, before it can come into effect. In Canada, different types of constitutional amendments have different requirements to be enacted. There are five amendment formulas included in the Constitution of Canada, each relating to different elements of the constitution. Most of these amendment formulae require the consent of various provincial legislatures, after first being proposed by Act of Parliament. In referendums to amend the constitutions of Australia and Switzerland it is required that a proposal be endorsed not just by an overall majority of the electorate in the nation as a whole, but also by separate majorities in each of a majority of the states or cantons. In addition, if an Australian referendum specifically impacts one or more states then a majority of the electorate in each of those states must also endorse the proposal.

Mixed systems

In practice, many jurisdictions combine elements of more than one of the usual amendment procedures. For example, the French constitution may be amended by one of two processes: either a special legislative majority or a referendum. On the other hand, an amendment to the constitution of the U.S. Commonwealth of Massachusetts must first be endorsed by a special majority in the legislature during two consecutive terms, and is then submitted to a referendum. Some states such as Wisconsin and Iowa use the same process but do not require supermajorities.

Some factions provide that their different provisions must be amended in different ways. Most provisions of the constitution of Lithuania may be amended by a special legislative majority but a change to the status of the state as an "independent democratic republic" must be endorsed by a three-quarters majority in a referendum.[1] Unlike its other provisions, a referendum is required to amend that part of the constitution of Iceland that deals with the relationship between church and state.[2]

Form of changes to the text

There are a number of formal differences, from one jurisdiction to another, in the manner in which constitutional amendments are both originally drafted and written down once they become law. In some jurisdictions, such as the Republic of Ireland, Estonia and Australia, constitutional amendments originate as bills and become laws in the form of acts of parliament. This may be the case notwithstanding the fact that a special procedure is required to bring an amendment into force. Thus, for example, in the Republic of Ireland and Australia although amendments are drafted in the form of Acts of Parliament they cannot become law until they have been approved in a referendum. By contrast, in the United States a proposed amendment originates as a special joint resolution of Congress that is not submitted to the President for his assent.

The manner in which constitutional amendments are finally recorded takes two main forms. In most jurisdictions, amendments to a constitution take the form of revisions to the main body of the original text. Thus once an amendment has become law, portions of the original text may be deleted or new articles may be inserted among existing ones. The second, less common method, is for amendments to be appended to the end of the main text in the form of special articles of amendment, leaving the body of the original text intact. Although the wording of the original text is not altered, the doctrine of implied repeal applies. In other words, in the event of conflict, an article of amendment will usually take precedence over the provisions of the original text, or of an earlier amendment. Nonetheless, there may still be ambiguity as to whether an amendment is intended to supersede an existing article in the text or merely to supplement it. An article of amendment may, however, explicitly express itself as having the effect of repealing a specific existing article.[3] The use of appended articles of amendment is most famous as a feature of the United States Constitution, but it is also the method of amendment in a number of other jurisdictions, such as Venezuela.

The Constitution of Austria is unusually liberal regarding the recording of constitutional amendments. Any piece of parliamentary legislation can be designated as "constitutional law", i.e. as a part of the constitution if the required supermajority and other formalities for an amendment are met. An amendment may take the form of a change of the B-VG, the centerpiece of the constitution, a change to another constitutional act, a new constitutional act, or of a section of constitutional law in a non-constitutional act. Furthermore, international treaties can be enacted as constitutional law, as in the case of the European Convention of Human Rights. Over the decades, frequent amendments and, in some cases, the intention to immunize pieces of legislation from judicial review have led to an enormous amount of "constitutional garbage" consisting of hundreds of constitutional provisions spread all over the legal system. In recent years, this has increasingly led to calls for reform.

See also

Footnotes

  1. ^ Article 1.
  2. ^ As of 2004 the relevant article is Article 62 which establishes the Evangelical Lutheran Church. Other provisions may be amended by a special legislative majority.
  3. ^ 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.

References


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