10 · Rigid and flexible: how a constitution is changed

The last lesson asked whether a constitution is gathered into one document. This lesson asks the other form question: how hard is it to change? This is the measure of entrenchment (job four from Lesson 2) turned into a dial, and it decides how much the constitution can really resist an ordinary majority.

The spectrum: rigid to flexible

• A rigid constitution is much harder to amend than to pass an ordinary law. It demands some extra hurdle: a supermajority, approval by regional units, a referendum, a delay, or several of these at once.
• A flexible constitution can be changed by roughly the same process as any other law, so an ordinary legislative majority can alter it.

Rigidity is the practical strength of entrenchment. A constitution that promises a right but can be amended away by tonight's majority protects that right weakly; one that demands a nationwide supermajority to touch the same right protects it strongly. The dial runs from "just another statute" (fully flexible) to "almost impossible to change" (deeply rigid).

The United States is near the rigid end

Article V makes the US Constitution genuinely hard to change. An amendment must be proposed by two-thirds of both houses of Congress (or a convention called by two-thirds of the states) and then ratified by three-quarters of the states (U.S. Const. art. V). Both stages need large supermajorities, and the second runs through the states, not Congress. The result is visible in the count: in more than two centuries the Constitution has been amended only 27 times, and the first 10 of those (the Bill of Rights) arrived together in 1791. A rule that demands three-quarters of the states is a rule most proposals never clear.

The flexible end, and the uncodified link

At the other end sit constitutions an ordinary majority can change. The United Kingdom is the extreme case: because it is uncodified and Parliament is legally sovereign, there is no special amendment process at all, and a constitutional rule can in principle be changed by the same simple majority that passes any statute (Dicey, 1885). This is why the two form sub-questions are linked: an uncodified constitution is usually flexible (no single entrenched text to make rigid), while a codified one CAN be rigid but does not have to be. New Zealand, from the last lesson, shows the in-between: written in part, but not entrenched, so still flexible.

The Goldilocks problem: too rigid and too flexible both fail

Amendment difficulty is a genuine design trade-off, and neither extreme is safe.

A constitution too easy to change cannot bind; one too hard to change cannot bend. Scholars who study how long constitutions survive find that endurance depends partly on getting this balance right, along with how inclusively the document was made and how well it fits its country (Elkins, Ginsburg, & Melton, 2009). So when you read the amendment article, you are reading the constitution's estimate of how much it should resist its own people, which is one of the most revealing clauses in any founding document. This is structural description, not legal advice.

Sources

• U.S. Const. art. V. https://constitution.congress.gov/constitution/article-5/
• Dicey, A. V. (1885). Introduction to the study of the law of the constitution. Macmillan.
• Elkins, Z., Ginsburg, T., & Melton, J. (2009). The endurance of national constitutions. Cambridge University Press.