Amending Formulas

… a core concept in Governance and Institutions and Atlas100

AmendingFormulaConcept description

Malcolmson and Myers (reference below) note that political regimes do not remain static and that a key function of a constitution is to provide for clear provisions (“formulas”) for constitutional amendment.

Amending formulas for the Constitution of Canada

The amending provisions for the Constitution of Canada are set out in Part V of the Constitution Act, 1982 (see http://laws-lois.justice.gc.ca/eng/Const/page-16.html#h-56, accessed 12 August 2016).

These provisions are summarized in the following table (after Malcolmson and Myers, page 30)

Procedure (Section)
Subject of Amendment
Amending Formula
General Procedure (secs. 38-42, 42) All sections of the Constitution not exempted by secs. 41, 43, 44, 45

Provincial representation in the Senate

Supreme Court reform

Principle of proportional representation in the House of Commons

The establishment of new provinces

Extension of provincial boundaries into the territories

Parliament + seven provinces with 50% of the population
Unanimous Agreement (sec. 41) Changes to the executive offices (Queen, Governor General, Lt. Governors)

Right of province to have no fewer MPs than Senators

Use of French and English languages

Composition of the Supreme Court

Amendments to sec. 41

Parliament + all provinces
Some Provinces (sec. 43) Alteration of boundaries between provinces

Provisions relating to the use of French and English languages

Parliament + relevant provinces
Parliament (sec. 44) Laws amending the executive of the Parliament alone

Government of Canada or the Senate of the House of Commons (not falling under secs. 41.2)

Parliament
One Province Amendment to the Constitution of a provincial government alone (not falling under sec. 41) Province
Amending formulas for the Constitution of the United States

LexisNexis notes to date, 27 Amendments to the American Constitution have been approved, six have been disapproved and thousands have been discussed:

“Article V of the Constitution prescribes how an amendment can become a part of the Constitution. While there are two ways, only one has ever been used. All 27 Amendments have been ratified after two-thirds of the House and Senate approve of the proposal and send it to the states for a vote. Then, three-fourths of the states must affirm the proposed Amendment.

“The other method of passing an amendment requires a Constitutional Convention to be called by two-thirds of the legislatures of the States. That Convention can propose as many amendments as it deems necessary. Those amendments must be approved by three-fourths of the states.

“The actual wording of Article V is:

“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.””

Atlas topic, subject, and course

Constitutional Framework (core topic) in Governance and Institutions and Atlas100 Governance and Institutions.

Source

The Department of Justice, at http://laws-lois.justice.gc.ca/eng/Const/page-16.html#h-56, accessed 12 August 2016.

Patrick Malcolmson and Richard Myers (2012), “The Constitution,” in The Canadian Regime: An Introduction to Parliamentary Government in Canada, 5th ed., Toronto: University of Toronto Press.

LexisNexis at http://www.lexisnexis.com/constitution/amendments_howitsdone.asp, accessed 12 August 2016.

Page created by: Ian Clark, last modified on 12 August 2016.

Image: Simon Fraser University, at http://www.sfu.ca/~aheard/partv.html, accessed 11 August 2016.