Why a Constitution Provides for Its Own Amendment

In one line

A constitution that cannot change becomes irrelevant and a constitution that changes too easily is not a constitution, so every framer must choose a point between the two.

In the wording a student can write in an exam: an amending procedure is the mechanism by which a constitution provides for its own alteration, and its design reflects a judgment about how far the present generation should be able to bind the future, and about which institutions should have a say.

The problem

A constitution binds the future. The people who ratified the American Constitution in 1788 are all dead, and their document governs three hundred and forty million people who never agreed to it. That is the dead hand problem, and Thomas Jefferson's answer, that the earth belongs to the living and every constitution should expire after nineteen years, has been adopted by nobody.

A constitution that changes by ordinary majority is not a constitution. If the legislature could amend it at will, the limits it imposes on the legislature would be no limits at all.

The amending procedure is the compromise. It permits change and makes it harder than ordinary legislation, and the degree of difficulty is the design choice.

What a procedure must decide

Who may propose. The legislature alone, the legislature and the units, the executive, or the people directly.

What majority is needed. A special majority of the legislature; a majority of the units; a majority of the people; or some combination.

Whether the units have a say. In a federation this is not optional if the division of powers is to be secure.

Whether the people vote. Directly in Switzerland and Ireland; never in India or the United States.

Whether anything is beyond amendment. Article 79(3) of the German Basic Law says yes in terms; the Indian basic structure doctrine says yes by inference; Article V of the American Constitution says yes for one thing only, equal suffrage in the Senate.

Whether a court may review an amendment. India yes; Germany yes under article 79(3); Ireland no; the United States, in effect no since Coleman v. Miller, 307 U.S. 433 (1939).

MU's three, in outline

The United States, Article V. Proposal by two thirds of both Houses of Congress, or by a convention called on the application of two thirds of the State legislatures; ratification by three quarters of the States, by legislature or by convention as Congress directs. Two entrenchments, one spent and one live.

India, article 368. A special majority of each House, being a majority of the total membership and two thirds of those present and voting; for the matters in the proviso, ratification by the legislatures of not less than half the States; and a separate class of changes by simple majority outside article 368 altogether, under articles 4, 169 and 239A among others.