By Ethan Hollander, Wabash College
No matter how well-intentioned or carefully crafted, constitutions, like any other laws, are still just words on paper. Our real defenses against tyranny will always remain amorphous, and dependent on things like political culture, social norms, and the rule of law. One of the major ways that constitutions differ around the world is in how hard or how easy it is to amend them.
Rigidity of a Constitution
Many democratic constitutions are fairly rigid, and that shouldn’t be too surprising. If a constitution really embodies higher law, it makes sense that changing or adding to it would require more widespread agreement—a higher threshold—than changes to ordinary laws do.
The rigidity of a constitution is also envisioned as a way of protecting minority rights—rights that would otherwise be at the mercy of a fickle and potentially oppressive majority. A majority might have enough power, from time to time, to determine the makeup of a country’s government. But if the constitution puts limits on what a government itself can do, then mere control of the government isn’t enough for a majority to have its way.
Why a Constitution Shouldn’t Be Flexible
Notice how a more flexible institution wouldn’t provide the same level of protection. If a constitution is easy to change, any majority that finds its will stymied by a constitutional provision can, in theory, just change the provision—and go about its oppression of the minority unhindered.
A flexible constitution should, in theory, be a better reflection of the country’s citizenry at any given moment in history. But by making it easier for the majority to get its way, flexibility can also hinder the ability for a constitution to protect minority rights.
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How Countries Make Constitutional Changes
Still, some countries take the notion of constitutional rigidity to an extreme. In a few Caribbean countries, constitutional amendments require a three-fourths majority in parliament. The United States only requires a two-thirds majority, but it then has to get that in both houses of Congress, and then three-fourths of the states have to agree to it as well.
Other countries have differently difficult ways of assuring widespread agreement for constitutional change. Japan and South Korea require supermajorities in parliament, and then put the issue to a national referendum. Australia and Switzerland also have national referenda, and constitutional amendments there have to win not just a nationwide majority, but also a majority in a majority of the country’s states or cantons.
Given the difficulty of meeting such thresholds, it’s not surprising that constitutional change in these countries is slow. The Japanese constitution has never been amended. And since the initial passage of the Bill of Rights in 1791, the US Constitution has only been amended 17 times.
Constitutional Flexibility
But there are countries where the thresholds for change are lower, and where constitutions are easier to amend. In fact, some countries don’t have written constitutions at all!
In the United Kingdom, New Zealand, and Israel, the only real constraints on what government can do—and hence, on what the majority can decide—are political norms and traditions about how things are done; that is, the degree to which today’s leaders value the precedents already set.
Such flexibility is positive from the standpoint of government efficiency: If the majority wants to do something, it generally can. But constitutional flexibility takes away an important check against the power of the majority. If the majority doesn’t care what harms it might impose on a minority, there’s little to stop it from doing so. We face a classic trade-off between government efficiency on the one hand and minority protections on the other.
How America’s Constitution Is Unique
This is another situation where the American Constitution is unique—and radical in its uniqueness.
The United States has one of the most rigid constitutions in the world. This puts strict limits on what the government can do, but it also limits (in theory) the amount of harm the government can do. Because the American founders feared both traditional tyranny and tyranny of the majority, a rigid constitution seemed like the right trade-off.
So, while the US founders wanted institutions that would prevent tyranny at the hands of the federal government, they also wanted institutions that would prevent tyranny of the majority—a majority that, in a democracy, would have the government itself as its most powerful weapon.
This tension puts courts and constitutions at the heart of a democratic paradox. Law is the creation of government. But in a democracy, even the government must be subject to the law. So, how do we create a government that has enough power to write and enforce laws, but not so much power that it doesn’t have to follow them?
In many of the world’s democracies, independent courts and rigid constitutions are about the best that we can do.
Common Questions about Constitutional Amendments
The rigidity of a constitution is envisioned as a way of protecting minority rights—rights that would otherwise be at the mercy of a fickle and potentially oppressive majority. A majority might have enough power, from time to time, to determine the makeup of a country’s government. But if the constitution puts limits on what government itself can do, then mere control of the government isn’t enough for a majority to have its way.
To make amendments in the constitution, the United States requires a two-thirds majority, but it then has to get that in both houses of Congress. Then three-fourths of the states have to agree to it as well.
Courts and constitutions are at the heart of a democratic paradox: Law is the creation of government, but in a democracy, even the government must be subject to the law.
