Ways to Amend a Constitution

George Washington at Constitutional Convention of 1787 signing of the U.S. Constitution.

Ways of Amending a Constitution

If we analyse various constitutions of the world, we will find that there are many ways to amend a constitution. Some of the most important ones are as follows:

1. Formal Method of Constitutional Change – Every Constitution lays down a particular and a special method. For e.g. Indian Constitution can be amended by 2/3 majority in the Parliament and half of the states must ratify such change. A Constitution is a political document and not a statutory legal document. Thus, it is a very special procedure. But, in India, the procedure is difficult but change is easy.

In USA, the amendment to US Constitution must be passed by 2/3 majority in the Congress and by the people in ¾ states. The Constitution cannot be amended by the State Legislatures. They have no power to ratify the Amendment. Either they have to seek the consent of the people through referendum or they have to call an election for a Convention in which such an amendment could be ratified. Thus, American Constitution is very rigid both in theory and practice. However, Indian Constitution is rigid in theory but in practice, it is flexible.

Change of a Constitution is a political matter. Therefore, Formal Amendment of the Constitution is not easy. Hence, every constitution develops an informal method of change.

2. Informal Method of Constitutional Change – This is done through Judicial Review. It is the court that does the work of changing the constitution in order to make it abreast of the changes in the society. It exercises the power of interpreting the Constitution. By informal method, the Constitution has changed more times than the formal method.

It is only the Judiciary that keeps the constitution abreast of the changes in the Society. American Constitution does not specifically gives this power to the court. However, in Marbury v. Madison, Justice Marshall invoked the Supremacy Clause and said that no organ of the state can violate the constitution. It is only through Judicial Review that a cold and dead lettered Constitution becomes a Living Constitution. Constitution is what the judges say it is. Thus they constantly indulge into the process of modelling and remodelling the constitution by construction, reconstruction and deconstruction of constitutional concepts and constitutional jurisprudence. Judicial Review is done by changing the Canons of Interpretation of the Constitution. This is usually done using the following methods:

a. Textualism

b. Originism

c. Contextualism – Interpret the Constitution in the context in which the context has arisen.

d. Living Contextualism – This principle means that ‘Do not stick to one construction always’. The construction needs to be changed with the change in context and could even interpret the constitution against the spirit of the constitution. The judge must not only recite the words of the constitution but must also sing the tune of the constitution and by doing this, the judges always go into the mode of construction, reconstruction and deconstruction.

3. Desuetude – Every provision in the Constitution is important. It is as important as any other constitutional provision. Nothing is irrelevant in a constitution. Everything is equally relevant, must receive equal attention. But, if certain provisions are ignored or lie dormant, then it means that the constitution has changed to that extent.

4. Revolution – If the Constitution cannot be changed by normal methods, then it can be changed by revolution. Revolution is not rebellion and is not a bad word. It means fundamental change.