Rigid and Flexible Constitutions

The United States: the hardest in operation. Article V requires proposal by two thirds of both Houses of Congress, or by a convention called on the application of two thirds of the State legislatures, and ratification by three quarters of the States, which is thirty eight of fifty.

The trap: rigidity as written and rigidity in operation

Read only the procedures and you would say Switzerland is more rigid than India, because Switzerland requires a double popular majority and India requires only legislative majorities.

Count the amendments and the ranking reverses in an instructive way.

The United States Constitution has been amended twenty seven times in two hundred and thirty seven years, and the first ten came as a single package in 1791. The Twenty Seventh, on congressional pay, was proposed in 1789 and ratified in 1992, two hundred and two years later.

The Indian Constitution has been amended more than a hundred times in seventy five years.

The Swiss Constitution, on paper the most demanding, has been amended very frequently, because article 139 lets a hundred thousand voters put a proposal on the ballot directly, so amendment is a normal channel of politics rather than an extraordinary event.

The lesson is that a procedure's difficulty depends on the political system it sits in. The American procedure requires agreement across thirty eight States in a country with two polarised parties, and that is why it is hard. The Swiss procedure requires a majority of voters in a country used to voting four times a year, and that is why it is not.

A worked example

A government wishes to add a right to housing to the constitution.

In the United Kingdom an Act would do it, and the right would be as vulnerable as any other statutory right.

In India it would go under article 368 by a special majority of both Houses. If it were inserted in Part III it would need no State ratification, because Part III is not in the proviso. It would then be enforceable under article 32.

In Ireland the Bill would pass both Houses and go to a referendum under Article 47.

In Switzerland either the Federal Assembly proposes it or a hundred thousand voters do, and in either case article 140 sends it to a compulsory vote requiring a double majority.

In the United States two thirds of both Houses would have to propose it and thirty eight State legislatures ratify it, and no amendment has been ratified since 1992.

In Germany two thirds of the Bundestag and two thirds of the Bundesrat, and the addition would not touch article 79(3).

Six systems and six answers, from an afternoon in Westminster to a practical impossibility in Washington.

The cases

Facts. Dillon v. Gloss, 256 U.S. 368 (1921), was brought by a prisoner held under the National Prohibition Act, who argued that the Eighteenth Amendment was invalid because Congress had attached a seven-year time limit to its ratification, a condition not mentioned in Article V.

Held, by Van Devanter J for the Court. Congress may fix a definite period. "We conclude that the fair inference or implication from article 5 is that the ratification must be within some reasonable time after the proposal", and of the power of Congress, keeping within reasonable limits, to fix a definite period, the Court entertained no doubt.

Why it matters here. Rigidity is not only about numbers. A procedure that leaves a proposal open indefinitely is less rigid in effect than one that closes it, because the political moment can be waited out.

Facts. Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225, is worked in full in [The Basic Structure Doctrine]; for this chapter what matters is that thirteen judges were asked how far the special majority in article 368 could reach.

Held, by seven to six. Article 368 confers no power to alter the basic structure or framework of the Constitution.

Why it matters here. India's procedure is only moderately rigid on paper, and the doctrine adds a limit that no counting of majorities would disclose. A comparative answer that ranks India by its majorities alone has missed the most important thing about it.

Distinctions

What beginners get wrong

"Rigid means it cannot be changed." It means the procedure is harder. Switzerland is rigid and changes constantly.

"India has a flexible constitution." It has all three degrees at once, which is the interesting fact about it, and its most important limit, the basic structure doctrine, is not a procedure at all.

"A rigid constitution is a better constitution." Rigidity protects whatever is in the text, including what should not be there. The American Constitution's rigidity protected slavery until it took a civil war and the Thirteenth Amendment to remove it.

Limits and criticism

The classification measures the wrong thing on its own. What matters is whether the constitution changes appropriately, not how often.

Judicial interpretation is a substitute for amendment. In the United States, where formal amendment is nearly impossible, constitutional change happens through the Supreme Court, which is why the appointment of a Justice is a political event of the first order and why Dobbs v. Jackson Women's Health Organization, 597 U.S. 215 (2022), could reverse fifty years of settled doctrine without a word of the text changing.

Rigidity can be evaded. A government that cannot amend may achieve the same result by ordinary legislation, by executive action, or by appointing judges who read the text differently.

Quick revision

1. Rigid: special amending procedure. Flexible: ordinary legislative process. It is a matter of degree.
2. United Kingdom: fully flexible; only section 2(1) of the Parliament Act 1911 protects the duration of Parliament, and only procedurally.
3. India: three routes under and outside article 368, with State ratification for the proviso matters.
4. Switzerland: compulsory referendum with a double majority under article 140, plus the popular initiative under article 139.
5. United States: Article V, two thirds and three quarters, twenty seven amendments in two hundred and thirty seven years.
6. Dillon v. Gloss, 256 U.S. 368 (1921): ratification must be within a reasonable time and Congress may fix the period.
7. Kesavananda Bharati: the basic structure limit is not a matter of majorities and does not show up in the procedure.

Test yourself

1. Define rigidity and explain why the American Constitution is more rigid in practice than the Swiss. Rigidity is the demandingness of the amending procedure relative to ordinary legislation. Article V requires agreement across two thirds of Congress and three quarters of the States in a polarised two-party system, so it has produced twenty seven amendments; the Swiss procedure requires a popular double majority in a country where constitutional voting is routine and where a hundred thousand signatures can start it, so it has produced very many.

2. Is India's Constitution rigid or flexible? Answer precisely. Both, by design. Matters such as the creation of States under articles 3 and 4 change by simple majority outside article 368; most of the Constitution changes by a special majority of each House; the matters in the proviso to article 368(2) additionally need ratification by half the State legislatures. Beyond all three sits the basic structure doctrine, which no majority can satisfy.

3. What does Dillon v. Gloss add to the study of rigidity? That the time available for ratification is part of the procedure's difficulty. The Court inferred from Article V that ratification must occur within a reasonable time and held that Congress may fix a definite period, which prevents a proposal being revived in a wholly different political era.

4. Why can a rigid constitution still change substantially without any amendment? Because interpretation does the work. Where amendment is practically closed, constitutional development moves to the courts, and a change of doctrine has the same effect as a change of text: Dobbs v. Jackson Women's Health Organization, 597 U.S. 215 (2022), overruled Roe v. Wade, 410 U.S. 113 (1973), and the Constitution was not altered by a word.