President Wilson had said that the constitution must of necessity be a vehicle of life and that its substance is the thought and habit of the nation. If the constitution can be amended easily, by a method that enables the political sovereign to express its will, there can be no conflict between actual conditions and legal organisation. But an easy method of amending the constitution leads to instability, as a slight swing in popular opinion may change the fundamental form of the government. If, on the other hand, the constitution is difficult to amend or if the political sovereign does not possess the means to express its will, one of the two things may happen.
First, there may grow up extra-legal institutions fully supported by public opinion. Take, for example, the election of the President in the United States. The constitution provides for an indirect election. It has now come to be a direct one, but without amending the constitution. Secondly, if the extra-legal institutions are not permitted to grow, the consequent result is an open revolution. Jennings says that a constitution has to work not only in the environment in which it was drafted but also centuries later.
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“It must therefore be capable of adaptation to new conditions as they arise.” Carl Friedrich is, accordingly, of the opinion that a well-drawn constitution should “provide for its own amendment in such a way as to forestall, as far as humanly possible, revolutionary upheavals.” It is not possible to consider all the modes of amendment as adopted in different countries. Three different methods are, however, generally followed: 1. The constitution may be amended by the ordinary legislature as in the case of Britain. The procedure is exactly the same as that for the enactment or amendment of ordinary statutory legislation.
Sometimes while the ordinary legislature is empowered to effect amendments, it may, at the same time, be made subject to a special process. For example, the Constitution of India provides that an amendment of stated provisions of the Constitution may be initiated in either House of Parliament, and when the Bill is passed in each House by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting, it shall be presented to the President for his assent and the Constitution will then stand amended. But if the amendment seeks to make any change in the Union List, Concurrent List, and State List, or the representation of States in Parliament, or the powers of the President, the Supreme Court, amendament of the Constitution, etc., the amendment shall also require to be ratified by the legislatures of not less than one-half of the States before the Bill is presented to the President for his assent. 2.
A special body may be created for the amendment of the constitution. The typical example is the United States of America. An amendment may be proposed by a two- thirds vote in both Houses of Congress and ratified, unless Congress specifies which method should be followed, either by legislatures in three-fourths of the States or conventions in three-fourths of the States. The second method is that on an application of the legislatures of two-thirds of the States, Congress may call a national constitutional convention for proposing amendments and it should be ratified by the legislatures of three-fourths of the States or by conventions in three-fourths of the States. 3. Popular referendum is another device and it aims at referring amendments to the people for their approval.
This is regarded as the most democratic method. Popular referendum for amending the constitution obtains in Switzerland, Australia, France and in some of the States of the United States of America. It must again be emphasised that no constitution can be regarded as final or unchanging. A written constitution requires to be modified as a result of new political ideals. The provision for amendment should, therefore, neither be so rigid as to make the required changes practically impossible nor so flexible as to make possible frequent and unnecessary changes and lower the authority and respect of the constitution.
The machinery of amendment should be like a safety valve, so devised as neither to operate the machine with too great facility nor to require, in order to set it in motion, an accumulation of force sufficient to explode it. While providing for the process of amendment the authors of a written constitution should keep these considerations in view: the requirements of growth, and the element of conservatism.