Amendment- USA and Switzerland

The word amendment may be defined as “a change made by correction, addition or deletion”.
With reference to laws, amendment is the process of incorporating “a minor change or addition
designed to improve a text, a piece of legislation etc.” The modes of amending the Constitution
change from time to time and are based on new circumstances. In general, it may either be
informal or formal. Informal methods are 1) judicial interpretation 2) conventions and
constitutional usages. Formal method is the constituent process.

Informal Methods:

1. Judicial Interpretation
The constitutional text does not change but its interpretation undergoes a change. The
words in the constitution having one meaning may be given a different meaning in
another context. This is done keeping in mind the changing circumstances of a
progressive society in order to yield new and fuller meaning to the word/ phrase in
question. Judicial interpretation is a process of slow and gradual metamorphosis of
constitutional principles and is somewhat invisible, for the change has to be deciphered
by an analysis of a body of judicial precedents. In this process, the courts play a
dominant role for it is day function to interpret the constitution.
The best example where this process has been effectively used for adoption of the
Constitution is the United States where the Supreme Court has from time to time given
a new meaning to phrases and words in the Constitution, so as to make the 18th century
laissez faire era document (The Federal Constitution) sub-serve the needs of a vast
expanding and highly industrial civilization of the 21st century without many formal
amendments being effectuated in its text.

2. Conventions and constitutional usages

Conventions and usages, though operating within the framework of the provisions of
the constitution, do modify the content and effect of the Constitution. Conventions,
unlike rules, are made to evolve out of practices followed over a period of time.
Conventions operate in several ways. Firstly, a convention may nullify a constitutional
provision in practice without formally abolishing it. For instance, the veto power of the
head of the state to veto a Bill passed by the legislature is not exercised except on the
advice of the ministry. Secondly, a convention may work by transferring powers
granted to one authority in the constitution to another.
Thirdly, a constitution may be affected by a convention upon supplementing a provision
therein.

Formal method
A formal method of Constitutional Amendment consists of changing the language of a
constitutional provision, so as to adapt it to the changed context of social needs.
 In some countries, the process may be easier than the others and can this be classified
as rigid or flexible. A flexible constitution is one in which amendment can be effected
rather easily, as easily as enacting an ordinary law. A flexible constitution could
compromise on the supremacy of the constitution. On the other hand, rigid constitution
is one in which the amendment process is more elaborate and difficult. A rigid system
of amendment could ensure the Supremacy of the constitution.

Amendment in the United States of America:

Article V of the Constitution reads,

“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.”

While some of the draftsmen of the Constitution felt that an amendment provision was
necessary in the Constitution, to meet unanticipated difficulties that might eventuate from this
experiment in attempting to provide stability to government, the others doubted the propriety
or necessity for permitting amendment. Mr. Justice Brandeis said, “A code of law that makes
no provision for its amendment provides for its ultimate rejection.” From a mere perusal of the
said article, it can be understood that Article V of the federal constitution contains the seeds
for the destruction of the entire Constitution. It also contains potentialities for expansion and
modification of every power therein contained.

Proposal and Ratification

Constitutional amendment in the United States of America involves two separate stages, i.e.,
initiation and ratification. The use of correct procedure in proposal and ratification could result
in the destruction of all individual rights, the elimination of the federal government, the legal
disappearance of the states or any portions of them or a complete redistribution of power.
The amendments may be proposed in either two ways:
1) by a two third vote of both House of Congress or
2) by a convention called together on the application of the Legislature of two third of the
states.
All amendments have been initiated by first method and the second method has never been
employed.
This is mostly because, in America, the concept of popular sovereignty prevails which means
that the Legislature is a mere agent of the sovereign people and as such any enactment by the
agent of the people is liable to be scrutinized in the Court of law to ascertain if the impugned
Legislative enactment is against the mandate of the people incorporated in the Constitution.
The popular sovereignty and constitutional supremacy are the fundamental features of the
American Democracy. The dogma that the sovereignty of the people to make or change the
Constitution was exercisable only by the people themselves through a convention of the people
was emphatically rejected in US v. Sprague, wherein it was held that the people, after setting
up a written constitution, can divest themselves of their legal sovereignty, so that they can
thereafter act through the organs established by the Constitution. (Similarly held in Dodge v.
Woolsey 1856 18 How 331, Hawke v. Smith 1919 253 US 221 and Lesser v. Garnet 1922 258
US 130).

An amendment proposed may be ratified either by

1) by vote of the legislatures of three fourth of states, or
2) by the constitutional conventions in three fourths of the states.
The choice of the method is wholly within the discretion of the Congress. After ratification,
the Constitutional Amendment becomes effective.

When two third of the state apply to Congress to call a convention for proposing amendment,
Congress has no discretion and must do so. However, the choice of ratification is the sole
discretion of the Congress. For some amendments, that is, 18th, 20th, 21st, and 22nd, the
Congress had placed a time limit of seven years within which states were to ratify the proposed
amendment. However, if no such time limit is prescribed by the Congress in the proposal for
amendment, the states have an indefinite time within which it may ratify or signify its refusal
to ratify the amendment. In Chandler v. Wise (1939) 307 LS 474 it was held that a state may
ratify an amendment even after having refused its assent previously. In Coleman v. Miller
(1939) 307 US 433 it was held that a State cannot withdraw its ratifications after having notified
it to the Secretary of State. On the other hand, there is no power in the hands of the Congress
to compel a state legislature to take any action upon the amendment referred to it for ratification
though it is competent to specify time limit within which the amendment will be open for
ratification (Dillon v. Closs, (1921) 256 US 510). In 1992 the Congress accepted as valid the
ratification of the 27th amendment which was proposed by the first Congress, despite 2 century
gap (202 years and 223 days) between the proposal and ratification.

However, the Congress' exercise of supervisory power over the amendment process could be
controversial. When the Congress proposed Equal Rights Amendment, which would have
outlawed general discrimination, it established a time limit of 7 years for ratification. As the
deadline for ratification neared without 3/4ths of state legislatures having ratified the
amendment, the Congress in 1978 extended the deadline for another 30 months. Furthermore,
on noting that five state legislatures had voted to rescind the earlier ratification, it also
prohibited such action. Both these steps raised serious constitutional issues, but because the
extended deadline also passed without the amendment being ratified, it ultimately had no effect
on the Constitution.
Ratification of the first ten amendments was completed by December 15, 1791. The eleventh
amendment, preventing suit against a state by citizens of another state, became effective in
1795. The twelfth amendment, changing the procedure of voting for the President, was
probably ratified in 1804. Except for three Civil War amendments written during a time of
crisis, there was actually no amendment for over one hundred years until the sixteenth
amendment (income tax) was enacted in 1913. The eighteenth and twenty-first amendments,
to a certain extent, cancelled each other. The nineteenth, granting suffrage to women was
ratified in 1920, and the twentieth, changing terms of elected federal officials, the assembly
time of Congress, and presidential succession was approved in 1933. The twenty-second (1951)
limited the President to two terms. The twenty-third (1961) gave the District of Columbia the
right to cast electoral votes for President. The twenty-fourth (1964) abolished the poll tax in
federal elections. The twenty-fifth (1967) provided answers to the formerly troublesome
problems of presidential inability and succession to the vice presidency. The twenty-sixth
amendment which prohibited denial of suffrage to adult US citizens was ratified in 1971 and
the twenty seventh amendment (1992) pertaining to Congressional salary was ratified after
over 200 years.

The ratification process reflects the federal character of the American political system in
requiring that amendments be supported mainly by numerical majority even also by a
geographical dispersed majority. As a final guarantee that any constitutional change would
coincide with state public opinion, the framers required ratification by state legislatures or
specially elected conventions in each State. Only the 21st amendment has been ratified by way
of conventions of state. When three fourth of the state have ratified, it is the duty of the
specified authority (Archivist of the United States) to cause the amendment to be published
with his certificate specifying the states by which it has been adopted and that the amendment
has become part of the constitution.

Limitations to Amendment:

1. Expressly Unamendable provisions

The express limitations on the amending power are three in number, that concern constitutional
modifications in the direct tax and slave trade provisions prior to 1808 and deprivation of any
state's equal suffrage in the Senate. The direct tax and slave trade provisions are now obsolete
(was operative only until 1808), hence, the only express limitation presently operative is on
equality that ‘no state without its consent, shall be deprived of its equal suffrage in the Senate.’

The equal representation of each of the States in the Senate is provided for in Art. I, s. 3(1),
that “the senate of the United States shall be composed of two senators from each State and
each Senator will have one vote.” Therefore, if a state consents, it could be deprived of a
senator. If two-thirds of both houses of Congress proposed reducing the representation of all
the states to one senator or abolishing the states entirely, and either proposal was ratified by
three-fourths of the legislatures or conventions in the states, equality of suffrage would prevail
and no state could object.

In other words, Art. I, S 3(1) cannot be amended by the procedure laid down in Article V unless
the State(s) which is to lose its equal representation by such amendment, gives its consent to
the Amendment proposed. It is to be noticed that
a. The bar raised by the Section is not an absolute bar to the Article I s. 3(1) but only a
conditional bar to ensure compliance of an additional safeguard, that is, to secure the
consent of the State which likely to be affected.
b. The section has been amended once in the 17th amendment in 1913. The original
provision was that the representatives of the States would be elected by the legislature
of each State. By the 17th Amendment, they would be elected by the direct vote of the
people of each state.

2. Implied Limitation

In the United States, it was suggested from time to time that the amending powers conferred
under Art. V is subject to an implied limitation, i.e., there are some provisions which cannot
be changed by the process of amendment provided for in Art. V but can only be changed by
the people as a whole. But today, there is a consensus of opinion that the power of amendment
conferred by Article V is not subject to any limitation, save that expressly contained in that
very article, that is “no state without its consent shall be deprived of its equal suffrage in the
Senate”. Subject to this limitation, the power to amend extends over all parts of the Federal
constitution and no part of it is unamendable. No part of the Constitution is regarded as ‘basic’
or 'fundamental' to be exempted from any change through the process of amendment provided
by the constitution itself. Thus, though the supreme court in Texas v. White observed that the
United States is an indestructible Union composed of indestructible States, jurists have opined
that this observation does not mean that there is any legal bar to the constitution being amended,
in conformity with article V, to abolish either the union of the States, if the people so desire.

In Schneiderman v. US, it was held that Article V contains procedural provision for
constitutional changes by amendment without any present limitation, whatsoever, except that
one relating to equal suffrage in the Senate. It is established in the United States that no
amendment was beyond the amending power conferred by the constitution. As noted by
American scholar Livingstone “by following the prescribed procedure, anything... can be
accomplished”

It has been suggested from time to time that the Bill of Rights contained in the first 10
amendments to the constitution and the 14th amendment containing the due process clause are
so fundamental in nature that the constitution should be read as containing an implied
prohibition against their amendment. In the National Prohibition Cases 1920 253 US 350, it
was argued that the due process clause was unalterable but the court did not consider it
necessary to meet the argument by writing a judgement and disposed of the case by an oral
decision upholding the validity of the eighteenth amendment, which was challenged.
In US v. Sprague, the court while rejecting the contention that there was implied limitation
upon the discretion when rights of individuals would be directly affected, held that there was
no limitation upon the absolute discretion of the Congress to have the amendment ratified either
by convention hall by state legislature. The obiter of justice Douglas for the majority of the
Supreme Court in Whitehill v. Elkins reads as follows, “if the federal constitution is our guide,
a person who might wish to alter our form of Government may not be cast into the outer
darkness. For the constitution prescribes the method of alteration by the amending process in
article V and while the procedure for amendment is restricted, there is no restraint on the kind
of Amendment that may be offered.”

Perceptive writers on the constitution of the USA have also taken the view that there are no
implied limitations, whatever, upon the power of Amendment, and that an amendment can
change the dual form of government or the bill of rights and that the framers of the Constitution
did not intend to make an unalterable framework of government in which only the minor details
are changed by amendment.

Jurist Burdick notes that it is only public opinion acting upon the agencies which place is any
check up on the amending power. The result is that the American Supreme Court has no power
of Judicial review to veto an amendment of the Constitution of US on the ground of any
‘substantive limitation’ because doing so would enable the supreme court to veto the will of
the people expressed in a Constitutional Amendment without any possibility of the reversal of
the court's action except through revolution. The fact that no attempt has so far been made in
the United States, to abridge the Bill of Rights, by a formal amendment, is not due to the lack
of any legal power to do so, but because the people are so alert that any attempt to do so might
lead to a revolution.

Reasons for rigidity

The power of amendment is vested not in the Legislature but in an ad hoc or special body
convened for that purpose. The Supreme Court has therefore held (Dillon's case) that the
amendment of the Federal constitution is not legislative act and does not, accordingly, require
the assent of the President. The powers of Congress in this behalf are derived from the
Constitution independent of its legislative powers. Similarly, it has been held that when is state
legislature ratifies a proposal for amendment of the Federal constitution, it exercises for Federal
function so that its ratification is valid, even though the constitution of the state requires a re-
election for the purposes of a constitutional amendment.

The constitution is not easily amended. Over 10,000 amendments have been introduced in or
formerly recommended by the Congress, but only 33 have been adopted by the Congress of
which only 27 have been ratified. The paucity of amendments is attributed to the conservative
nature of Congress because not more than 27 proposals could secure a majority of two thirds
of members voting in either House of Congress.
Of those 27, four amendments were enacted with the intention to overrule some specific
constitutional decisions of the Supreme Court. Those 4 are:
1) The 11th amendment, overruling Chisholm v. Georgia (Holding that Georgia was subject to
suit by a private citizen in Federal court without it's consent),
2) the 14th Amendment overruling Deed Scott v. Somford ( holding in part that American
blacks were not and could not become American citizens),
3) the 16th amendment overruling Pollock v. Farmer's Loan & Trust Co. (Holding that an
income tax is a direct tax and therefore subject to constitutional rule of apportionment by
population among States), and
4) the 26th amendment overruling Oregon v. Michelle (holding in part that Congress lacked
authority to require the states to permit those over 18 to vote in state election).

Some of the other amendments have been a reaction to the judicial review of the courts and
had been commonly used to address other issues such as allocation of government power (14th
amendment), for the operation of Electoral System (12th amendment), the 17th amendment
providing for the senator's to be elected by direct popular vote rather than by State legislatures
or for creation of new rights (Bill of Rights- first 10 amendments), or the 15th and 19th
amendments (prohibiting denial of suffrage on account of race or sex).

In US v Sprague (1931 282 US 716) it was held by the Supreme Court that the amendment
could not be challenged on the ground that it had not been proposed or ratified by convention
of the people because the convention was only an alternative mode and that the choice as
between the two alternatives lay with the Congress.

In Hawke v. Smith (1920 253 US 221) the American Supreme Court held that
1) the expression “legislature of a state” in Article V of the Federal constitution meant
the representative legislative body which made laws for the state and not the electors
even though the authority of the representatives came from electors. Article V did not
envisage direct action by people.
2) amendment of Federal constitution rested on Article V of the Federal constitution
and if a state constitution provided otherwise it would be ultra vires the constitution.
3) amendment under Article V including ratification was not a legislative act.
4) ratification was a specific duty imposed on the state legislature by article V and no
state could change the methods therein set out for performing that duty.

The last sentence of article V preserves the federal form of Government by providing that no
state shall be deprived of its equal suffrage in the Senate, it without its consent. It has been held
that except this express limitation in Article V, no part of the Constitution is exempted from
change through the process of amendment prescribed by Article V including the Bill of Rights.

Revision of the Constitution – whether possible?

Instead of making a separate provision for a total revision, a Constitution may indirectly
achieve the same end by saving or withholding some specified provisions (considered to be
basic or essential in nature) from the process of amendment altogether so that an entirely new
Constitution cannot be made by the process of Amendment. In Art. V, the word ‘amendment’
is used. Though, two matters were specifically taken away from the scope of amendment, no
separate provisions was made for total revision or repeal of the Constitution of 1787, nor was
such power excluded from Art. V. As noted earlier, in USA, the States have to consent to
amendment and cannot be deprived of such equal suffrage. Therefore, if the States consent, the
entire Constitution may be replaced by a new one through the process of Amendment in
accordance with Article V.

Judicial review of constitutional amendments:

In a majority of cases, the court has held that the question of validity of a Constitutional
Amendment is a political question which is beyond the competence of the courts. Some jurists
believe that the reason for this is because the Courts being creatures of the Constitution cannot
question the validity of the existing constitution and that consequently as soon as an
amendment being adopted becomes part of the existing constitution the validity of the
amendment equally goes beyond the pale of Judicial review.

The courts have, however, resorted to interpretation of certain terms in Article V of the
American constitution, such as, 'ratified', 'two thirds of the houses' et cetera and has tacitly
assumed that the question of validity of ratification by a particular state as a justifiable question
and thereby exercised the powers of Judicial review. Such questions are obviously
distinguishable from the question whether Congress is competent to supplement the
constitutional provisions relating to amendment, say, by way of prescribing a period within
which a state must express its ratification or rejection. In some cases, the court has given its
verdict on the merits as to the validity of an amendment assuming that the question was a legal
or justiciable one.

Due to the rigidity of the formal process of constitutional amendment, the Courts have had to
play the role of adapting it by their interpretive process. On the whole, the Courts appear to
have discharged the function well. The Courts have moulded the rigid U.S. Constitution to the
growing and shifting needs of the nation through time.
Amendment in Switzerland:

The Constitution of Swiss Federation (Switzerland) was adopted by a referendum on 18 April

1999, in which a majority of the people and the Cantons voted in favour. It replaced the prior
federal constitution of 1874. The third and the current Constitution was enforced by the Federal
Parliament on 01.01.2000.

The Constitution required its people’s participation in the amending process and also provides
for a total and partial revision of the Constitution. Article 140(1)(a)1 of the Constitution
provides for a mandatory referendum for revision of the Federal Constitution and the revision
whether total or partial shall come into force as soon as it is accepted by the people and Cantons
(Art. 195)2.

Article 1923 of the 2000 Constitution provides that the Federal Constitution may be subjected
to a total or partial revision at any time. The conditions for total and partial revision are laid
out in Articles 1934 and 1945 respectively and the procedures for acceptance of the initiative

1Mandatory Referendum
1) The following must be put to the vote of the People and the Cantons:
a. amendments to the Federal Constitution;
b. accession to organisations for collective security or to supranational communities;
c. emergency federal acts that are not based on a provision of the Constitution and whose term
of validity exceeds one year; such federal acts must be put to the vote within one year of being
passed by the Federal Assembly.
2) The following are submitted to a vote of the People:
a. popular initiatives for a total revision of the Federal Constitution;
b. popular initiatives for a partial revision of the Federal Constitution in the form of a general
proposal that have been rejected by the Federal Assembly;
c. the question of whether a total revision of the Federal Constitution should be carried out, in
the event that there is disagreement between the two Councils

2
Art. 195 Commencement “The totally or partly revised Federal Constitution comes into force when it
is approved by the People and the Cantons.”

3
Art. 192 Principle
1. The Federal Constitution may be totally or partially revised at any time.
2. Unless the Federal Constitution and the legislation based on it provides otherwise, any
revision of the Federal Constitution is made by the legislative process

4 Art. 193 Total revision

1. A total revision of the Federal Constitution may be proposed by the People or by either of the
two Councils or be decreed by the Federal Assembly.
2. If the initiative emanates from the People or if the two Chambers are unable to agree, the
People decide on whether a total revision should be carried out.
3. If the People vote for a total revision, new elections shall be held to both Chambers.
4. The mandatory provisions of international law must not be violated.

5
Art. 194 Partial revision
and the circumstance under which the initiative may be rejected are provided in Articles 1386
and 1397 respectively. For total revision, it has to be initiated by a mandatory referendum (as
provided in Article 140). The Swiss Constitution also contains a provision for optional
referendum. Article 1418 lays down the prerequisites for initiating an Optional Referendum.
Upon voting, the decision would depend on the majority of the votes. Article 1429 lays down

1. A partial revision of the Federal Constitution may be requested by the People or decreed by
the Federal Assembly.
2. The partial revision must respect the principle of cohesion of subject matter and must not
violate mandatory provisions of international law.
3. The popular initiative for partial revision must also respect the principle of consistency of
form.

6
Art. 138 Popular initiative requesting the total revision of the Federal Constitution
1. Any 100,000 persons eligible to vote may within 18 months of the official publication of their
initiative propose a total revision of the Federal Constitution.
2. This proposal must be submitted to a vote of the People.
7
Art. 139 Popular initiative requesting a partial revision of the Federal Constitution in specific terms
1. Any 100,000 persons eligible to vote may within 18 months of the official publication of their
initiative request a partial revision of the Federal Constitution.
2. A popular initiative for the partial revision of the Federal Constitution may take the form of a
general proposal or of a specific draft of the provisions proposed.
3. If the initiative fails to comply with the requirements of consistency of form, and of subject
matter, or if it infringes mandatory provisions of international law, the Federal Assembly shall
declare it to be invalid in whole or in part.
4. If the Federal Assembly is in agreement with an initiative in the form of a general proposal, it
shall draft the partial revision on the basis of the initiative and submit it to the vote of the People
and the Cantons. If the Federal Assembly rejects the initiative, it shall submit it to a vote of the
People; the People shall decide whether the initiative should be adopted. If they vote in favour,
the Federal Assembly shall draft the corresponding bill.
5. An initiative in the form of a specific draft shall be submitted to the vote of the People and the
Cantons. The Federal Assembly shall recommend whether the initiative should be adopted or
rejected. It may submit a counter-proposal to the initiative.

8 Art. 141 Optional referendum

1. If within 100 days of the official publication of the enactment any 50,000 persons eligible to
vote or any eight Cantons request it, the following shall be submitted to a vote of the People:
a. federal acts;
b. emergency federal acts whose term of validity exceeds one year;
c. federal decrees, provided the Constitution or an act so requires;
d. international treaties that:
1. are of unlimited duration and may not be terminated,
2. provide for accession to an international organisation,
3.contain important legislative provisions or whose implementation requires the
enactment of federal legislation.

9 Art. 142 Required majorities

1. Proposals that are submitted to the vote of the People are accepted if a majority of those who
vote approve them.
2. Proposals that are submitted to the vote of the People and Cantons are accepted if a majority of
those who vote and a majority of the Cantons approve them.
the conditions for the required majorities.

With respect to the cantonal vote, 20 of the 26 cantons have each one vote, but the 6 so-
called half-cantons (because they were so historically split centuries ago) only have a half vote
each. The cantonal vote is determined by a popular vote among the people of that canton; if
the majority supports a proposal then the canton as a whole is regarded as supporting the
proposal. This cantonal vote means that small cantons are represented equally with the larger
ones. For example, Basel-Country as a canton has about 256,000 inhabitants, but has only half
a cantonal vote (the other "half canton" being Basel-City). On the other hand, the canton of
Uri has a full cantonal vote, but only 35,000 inhabitants.

More than 550 referendums have occurred since the constitution of 1848 (both legislative and
constitutional). Ten referendums have taken place in 2018 alone. The first constitutional
referendum was held in 1798, with respect to approval of the first Constitution. The latest
constitutional referendum was held on November 25, 2018 wherein the proposal sought to give
the Swiss Federal Constitution precedence over the international law, whenever the two
contradicted. The said proposal was rejected by 66.2% people voting against the proposal
(47.7% turnout) and all the 26 cantons rejecting the proposal.

3. The result of a popular vote in a Canton determines the vote of the Canton.
4. The Cantons of Obwalden, Nidwalden, Basel-Stadt, Basel-Landschaft, Appenzell
Ausserrhoden and Appenzell Innerrhoden each have half a cantonal vote.