Constitutional Amendment - Form of Changes To The Text

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 or her 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 new 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. 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 Bundes-Verfassungsgesetz, 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 it happened 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.

Under the German Weimar Constitution, the prevailing legal theory was that any law reaching the necessary supermajorities in both chambers of parliament was free to deviate from the terms of the constitution, without itself becoming part of the constitution. This very wide conception of "amendment" eased the rise of Adolf Hitler to power; it was thus explicitly denied in the new postwar constitution, which allows amendments only by explicitly changing the constitution's text.