Session 7
Constitutional amendment
We continue our discussion of the reasons why constitutions have a ‘special status’
within their respective legal orders. We have considered two ideas so far: their
special status may derive from the fact that they voice the will of the people and/or
from their content as ‘maps of power’. In this session, we will analyse the way in
which constitutions may be amended and reflect on the implications that this has
from the perspective of our inquiry.
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Selected articles on the amendment of the US, German and Spanish
Constitutions
Heringa-Kiiver, ‘The flexibility of Constitutions’ (extract)
Venice Commission: “Report on Constitutional Amendment” (2009)
o Section III (pp. 7-13): Overview of existing constitutional provisions
for amending national constitutions
o Section V (pp. 16-18): Purpose of Constitutional Commitment
1. Selected articles on the amendment of the US, German and Spanish
Constitutions
Please read the selected articles on constitutional amendment contained in the US,
German and Spanish Constitutions. For each of these constitutions, please consider
the following questions:
 Are there any parts of the constitution which may not be amended?
 How can (the other parts of) the Constitution be amended?
 In order to amend an ordinary law, it is normally necessary to have a
plurality of the Members of Parliament voting in favour of the
amendment (in other words, more votes in favour than against the
proposed amendment). In light of the three constitutions that you have
in front of you, would you say that it is harder to amend the constitution
or ordinary laws?
2. Heringa-Kiiver, ‘The flexibility of Constitutions’
The extract ‘The flexibility of Constitutions’, by Heringa and Kiiver, provides you
with a more structured discussion of this question.
3. Venice Commission: “Report on Constitutional Amendment” (2009)
Please read sections III and V of the ‘Report on Constitutional Amendment’
elaborated by the Venice Commission, which is an advisory body of the Council of
Europe.
 List the different requirements through which the constitutions
considered in the study protect themselves against change (section III).
 Why this resistance to change? (section IV)
Selected articles on the amendment of the US, German and Spanish
Constitutions
US Constitution (1789)
Article 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.
German Grundgesetz (1949)
Article 79
(1) This Constitution can be amended only by statutes which expressly amend or
supplement the text thereof. (…)
(2) Any such statute requires the consent of two thirds of the members of the Bundestag
and two thirds of the votes of the Bundesrat.
(3) Amendments of this Constitution affecting the division of the Federation into States
Lä nder, the participation on principle of the Lä nder in legislation, or the basic principles
laid down in Articles 1 and 20 are inadmissible.
Constitution of Spain (1978)
PART X. Constitutional amendment
Article 166
The right to propose a Constitutional amendment shall be exercised under the terms
contained in clauses 1 and 2 of Article 87 [which means that the power to initiate the
procedure of Constitutional amendment lies with the Government, the Congress, the
Senate and the legislative assemblies of the Autonomous Communities].
Article 167
1. Bills on Constitutional amendment must be approved by a majority of three-fifths of the
members of each House. If there is no agreement between the Houses, an effort to reach it
shall be made by setting up a Joint Commission of Deputies and Senators which shall
submit a text to be voted on by the Congress and the Senate.
2. If approval is not obtained by means of the procedure outlined in the foregoing clause,
and provided that the text has been passed by an absolute majority of the members of the
Senate, Congress may pass the amendment by a two-thirds vote in favour.
3. Once the amendment has been passed by the Cortes Generales, it shall be submitted to
ratification by referendum, if so requested by one tenth of the members of either House
within fifteen days after its passage.
Article 168
1. If a total revision of the Constitution is proposed, or a partial revision thereof, affecting
the Preliminary Title, Chapter Two, Section 1 of Title I, or Title II, the principle shall be
approved by a two-thirds majority of the members of each House, and the Cortes shall
immediately be dissolved.
2. The Houses elected must ratify the decision and proceed to examine the new
Constitutional text, which must be approved by a two-thirds majority of the members of
both Houses.
3. Once the amendment has been passed by the Cortes Generales, it shall be submitted to
ratification by referendum.
Article 169
The process of Constitutional amendment may not be initiated in time of war or when any
of the states outlined in Article 116 are in operation.
‘The Flexibility of Constitutions’ – extract from AW Heringa and P Kiiver,
Constitutions Compared. An Introduction to Comparative Constitutional Law
(2nd edn; Antwerp: Intersentia, 2009)
A state that has adopted a single charter as its constitution in the narrow sense, codifying
most of its broader constitution in that document, typically gives that document a special
status. Among other things, that special status is reflected in the fact that in order to
change that document, a special procedure has to be followed. Special procedures then
differ from the normal legislative process by which statutes, or acts of parliament, are
adopted. Sometimes certain important elements in the constitution cannot even be
changed at all. Constitutions that are harder to change than ordinary legislation are called
'rigid constitutions' or 'entrenched constitutions'. There, it is made more difficult to
change the rules of the game, as it were, than to play the game itself.
Typical amendment procedures for rigid or entrenched constitutions include the
requirement for super-majorities in parliament (e.g. Germany, Portugal); two
parliamentary readings of the amendment and new elections in between readings (e.g. the
Netherlands, Sweden); ratification of the amendment in the state's component territorial
sub-units (e.g. United States, India in certain cases) or a referendum (e.g. Australia, France
usually).
Some constitutions are more rigid than others. The German Basic Law is harder to amend
than ordinary statutes are, because both legislative chambers have to adopt an
amendment with a higher-than-usual majority. Nevertheless, the text was amended that
way about fifty times during its first fifty years of operation. The US Constitution, by
contrast, has in its first two hundred years of existence seen only twenty-seven
amendments, the first ten of which were included as a block right at the beginning. Yet
then again, a constitutional amendment in the US requires, once the proposal is adopted,
the approval of three-quarters of all the individual States. For fifty States that means
thirty-eight approvals, something that is not necessary for amendments in Germany, and
that may explain the endurance of the original text in the US. At the same time, the German
Basic Law excludes some of its fundamental features from future amendment: humanrights principles and its federal character, for example, may not be changed. The French
Constitution does not allow any change to the republican character of its government. The
US Constitution has no such 'forever clause', and is formally less rigid in that respect.
Rigidity may thus refer to both the procedure and the scope of a possible amendment: the
former makes change relatively difficult to accomplish, the latter limits the subjects that
can be changed in the first place.
The opposite of hard-to-amend rigid constitutions are 'flexible constitutions'. The
constitution of the United Kingdom, since it is not contained in a central document, does
not prescribe any special amendment procedures. Therefore, it can be changed in the
course of an ordinary legislative process, or as a result of the emergence of new customs
or case-Iaw in practice. (…)