Amending the Constitution

In most states, special procedures are required to change key features of the Constitution. Take a look at the "barriers" to amendment which some Constitutions put up.

US Constitution - Art V

"The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate."

French Constitution Art 89

"The President of the Republic, on a proposal by the Prime Minister, and Members of Parliament alike shall have the right to initiate amendment of the Constitution.
 
A government or a Member's bill to amend the Constitution shall be passed by the two assemblies in identical terms. The amendment shall have effect after approval by referendum.

However, a government bill to amend the Constitution shall not be submitted to referendum where the President of the Republic decides to submit it to Parliament convened in Congress; the government bill to amend the Constitution shall then be approved only if it is adopted by a three-fifths majority of the votes cast. The Bureau of the Congress shall be that of the National Assembly.
No amendment procedure shall be commenced or continued where the integrity of the territory is jeopardized.

The republican form of government shall not be the object of an amendment."

But in the United Kingdom - no such requirements are in place. Parliament could amend ANY rule or principle of the, so-called 'unwritten constitution', through an Act of Parliament. A Judicial decision could also alter the workings of the British Constitution. Conventions - an important 'source' of the Constitution - change or even develop or die through the actions of individuals.

See tomorrow's post (19th February) about current proposals for UK Constitutional Reform.

Are They Necessary?

Why have Constitutions, Laws and Regulations? I know that it's a theme I keep coming back to - but it is worth repeating -

"Power tends to corrupt,
 Absolute Power corrupts absolutely"

Experience tells us that without effective constraints - power WILL be abused - whether it is the petty official or the great dictator. That suggests that two principles need to be adhered to -

1 the costs of breaking constitutional (and other) rules need to be greater than the advantage that can be gained through disregard of them. That cost may be in the form of legal sanctions. A President of the United States "shall be removed from office" when he has been impeached and convicted of "Treason, Bribery, or other high Crimes and Misdemeanors"; a breach of electoral law can lead to the election being declared void - which is the reason why there was a recent by-election in Oldham East and Saddleworth (for more information press here). In Britain we may rely more on "conventions" rather than legal rules - but they still work on the principle that the cost of breaking the convention is greater than the short term advantage.

2 there should be limits on the discretion of officials. Dicey was opposed to granting wide discretionary powers because he believed that it would lead to arbitrary decisions. In the modern state, that may be unworkable. The English Courts have responded to modern needs by developing the remedy of "Judicial Review" which allows the Courts to oversee the use of discretion by public bodies and others exercising public (as opposed to private) functions.

US Constitution - The Preamble

A number of my students are this week studying thr principles behind Constitutional law. I'd like to welcome them to this short series on the US Constitution. But this blog is open to all - so even if you aren't a law student - I hope you find these brief pieces useful.

The US Constitution is an ideal document for studying the principles of constitutions. It is succinct - and logically deals with the key matters that a constitution should address - namely: who is to hold power - how are they chosen? who qualifies to be chosen? how long is their term of office? how can they be removed? what powers do they have? - and for what purposes? what limitations exist on the exercise of those powers? What are the 'checks and balances'? How can the rules be amended?

While this series concentrates on the US Constitution - I would encourage you to look at other constitutions - as a comparison - of structure, and of content? What do you think is essential? A database of constitutions can be accessed here. (Note - most have translations available - but you may need to look around the page of the national constitution to find the translated version link)

This first piece outlines the preamble.