Rigidity and Flexibility, Measured

In one line

The procedure tells you how hard amendment looks, and the counts tell you how hard it is, and the two do not agree.

In the wording a student can write in an exam: rigidity as written is a property of the amending procedure, and rigidity in operation is a property of the political system the procedure sits in, so that a demanding procedure in a consensual polity may produce frequent amendment and a less demanding one in a divided polity may produce almost none.

The procedures ranked by apparent difficulty

Most demanding on paper: Switzerland. Article 140 makes a referendum compulsory for every constitutional amendment, and article 142(2) requires a double majority, of the people voting and of the cantons.

Next: the United States. Article V requires two thirds of both Houses of Congress and ratification by three quarters of the States, which is thirty eight of fifty.

Next: India for the proviso matters. A majority of the total membership of each House and two thirds of those present and voting, plus ratification by the legislatures of not less than half the States.

Next: India for the ordinary case. The same special majority without State ratification.

Least: India for the excluded matters. A simple majority, for changes under articles 4, 169 and 239A, which article 4(2) and article 169(3) provide are not amendments for the purposes of article 368.

The counts

United States: twenty seven amendments in two hundred and thirty seven years. The first ten arrived together in 1791. The Twenty Seventh, on congressional pay, was proposed in 1789 and ratified in 1992, two hundred and two years later. Nothing has been ratified since.

India: more than a hundred amendments in seventy five years. The First came in 1951, inside eighteen months of commencement.

Switzerland: very frequent. The Constitution of 1999 has been amended many times since, and the 1874 text was amended well over a hundred times before its total revision.

Why the ranking reverses

Three reasons, and they are the substance of the chapter.

One: the number of veto players. The American procedure requires agreement across two thirds of a polarised bicameral Congress and thirty eight States. The Swiss procedure requires a majority of voters and of cantons, which is one decision by one electorate on one day.

Two: whether the procedure is part of ordinary politics. In Switzerland constitutional voting happens several times a year, and a hundred thousand signatures under article 139 place a partial revision on the ballot without any legislative agreement at all. Amendment is a channel of politics rather than an extraordinary event.

Three: what else is available. Where amendment is closed, change happens by interpretation. The American Constitution has changed enormously since 1937 without a word being altered, through the commerce clause, incorporation and substantive due process. Where amendment is open, less interpretive work is needed.