Throughout Mexican constitutional history, the various Constitutions have formulated different amendment procedures. The first Constitution in force in Mexico was the Constitution of Cadiz. At least 20 deputies are required to propose an amendment. The text must be read three times over a period of six days to consider the merits of the proposal in order to decide whether or not to formally open discussion on the amendment. This procedure is extremely rigid and complicated.. The Constitution of Apatzingan The Constitutional Decree for the Liberty of Mexican America was conceived as a provisional Constitution and therefore did not establish an amendment procedure.
It even prohibited any amendment especially one regarding the system of government Art. In view of this prohibition, did the Constitution of Apatzingan assume that other matters could also be amended? And, if so, under which procedure? Given the preeminence given to the legislative branch in this Constitution, it could very well be that it was assumed that the same procedure used to create and amend ordinary laws would be employed.
The Federal Constitution Articles adopted an amendment procedure that required the consecutive approval of two legislatures. The right of initiative belonged only to the states. States could propose amendments which would be analyzed by the current legislature, but voted on by the following one.
This procedure did not required special majorities. According to Article , principles concerning freedom, sovereignty, religion, the system of government and the division of powers among the Federation and the states were unamendable.. This procedure Articles of the Seventh Law was employed for ordinary laws with one exception.
The Supreme Conservative Power was a body that could control the constitutional consistency of the other branches. It is not clear whether this approval was meant as a formal requirement or the body truly had such margin of political decision that it could influence constitutional amendments..
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Finally, the current procedure was adopted in The text of Article was adopted almost in its entirety to become Article of the Constitution. The changes are minor. Article incorporated some accents, presumably as part of certain spelling changes in the Spanish language.
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Lastly, it added a comma in the last sentence. As can be observed, these minor changes are only stylistic and in no way modified the substance of the procedure. Therefore, it is possible to argue that Mexican constitutionalism already has years of experience using the same constitutional amendment procedure. It is worth exploring the amendments made to the text.. In 60 years, the Constitution was amended 34 times, 20 which gives a rate of 0.
This is a much lower rate than that made to the current Mexican Constitution and still substantially inferior than the rate of 1.
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It is a commonly shared thought that the amendment procedure is solely described in Article of the Constitution. The main constitutional amendment procedure is described in Article of the Constitution. The amendments must subsequently be approved by the majority of the states.. This procedure has been amended twice in history.
The first one took place in and allowed the Permanent Committee to perform certain functions in state vote counting. Presumably, before the amendment, only the Congress could count votes and thus, the promulgation of constitutional amendments was consequently at a standstill during Congress recesses. The original text of the Constitution established only one period of ordinary sessions 21 from September 1 st to December 31 st even though it could be ended earlier upon agreement.
Such short periods could have motivated the amendment in order to speed up the process.. Originally, Mexico City was considered a Federal District hosting the capital and the federal branches of power. In , an amendment covering 52 articles in the Constitution changed Mexico's Federal District into the 32 nd Federal Entity.
Among these changes was the express inclusion of Mexico City in the amendment procedure. However, deficient legal drafting may raise questions as to its interpretation. Currently, Article states:. In order that the additions or amendments shall become a part thereof, it shall be required that the Congress of the Union, by a vote of two thirds of the individuals present, agree to the amendments or additions and that they be approved by a majority of the legislatures of the States and of Mexico City. Given the wording, does it declare that amendments need to be approved by the majority of the Federal Entities formed of states and Mexico City, or has Mexico City been granted the power to give its approval independently?
Article does not specifically mention who has the right to propose constitutional amendments. This has led to a consolidated doctrine which states that the right of initiative for constitutional amendments is the same as the one for ordinary laws.. Historically, Article 71 said that the right to initiate laws belonged to the President of the Republic, Federal Deputies, Federal Senators, and state legislatures.
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However, in , the constitution was amended as to establish a popular initiative consisting of 0. If the same people who can propose a bill can also propose a constitutional amendment, can it be said that there is now a popular right of initiative for constitutional amendments? The answer seems to be yes. There are no grounds to exclude popular initiative from constitutional amendments if it is considered that an initiative of this type is the same as that for ordinary laws.
Also, besides an express mention in Article , Article 71 included Mexico City in January as a party that is able to propose laws through its legislature..
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Presidential veto is not admissible for constitutional amendments. As I have previously stated, 22 there are at least three commonly argued reasons why a veto cannot be used. In the first place, it is not an express right attributed to the President. Therefore, to exercise veto against a constitutional amendment would be a breach of the principle of legality. Finally, there is a practical argument. The same majority would be compelled to override the veto. We have briefly analyzed Article , deemed by many as the only amendment procedure. However, we must also consider other procedures that have been established to change the composition of national territory.
The territory of the Federation is expressly described in Articles 42, 43 and Article 42 of the Constitution describes the territory in toto. Article 43 enumerates the states of the Federation. The dilemma is clear. If Article 73 sets forth procedures to amend the territory of the Federation and this territory is expressly described in the Constitution, there are only two options to consider: either the Constitution describes two procedures which cannot be used at all because they would still require a subsequent constitutional amendment, or the Constitution is expressly describing two additional procedures to amend the Constitution in the specific area of territorial composition.
I presume that the latter is the correct one. The constitution must be interpreted systematically. Territorial procedures allow at least an amendment of Articles 42, 43 and Further amendments could be discussed. The abovementioned discussions, however, should be deemed as merely theoretical disputes. As I shall argue, the territorial procedures have never been used under the Constitution. All territorial amendments have been performed following the generic procedure described in Article Article This amendment procedure however is flexible 26 and it is entirely vested in the Federal Congress.
Such an amendment procedure requires neither a special majority nor further approval from the remaining Federal Entities. Here, there is a case in which a constitutional amendment can be approved in the same way as ordinary legislation is. Questions may arise as to whether or not the President may use the power of veto.
National doctrine provides no answer for this question. If we consider that a veto may not be exercised, we would have a clear case in which amending the Constitution would be even easier than amending an ordinary law.. Political conditions, however, are quite clear. These hypotheses apply only to new states, which are by definition not already part of the Federation.
For this section to be exercised, it is necessary for neighboring nations or overseas countries to ask to become part of Mexico.
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Both cases are very unlikely.. This section was amended once in Before , Mexico was divided into both states and territories. Territories were portions of land whose political and economic conditions did not meet the conditions to achieve the self-determination of a state and thus had a lesser political autonomy.
The territories originally mentioned in the Constitution were the territories of Baja California and Quintana Roo. A detailed description of the evolution of former Mexican territories goes beyond the scope of this article. It should be said nonetheless that in , the last territories Quintana Roo and Baja California Sur were admitted as states and Section II of Article 73 was repealed.. The procedure was never used even in the cases in which the conversion was achieved. For example, in , the territory of Baja California Norte was converted into a State using the procedure established in Article , which involved the approval of the other Federal Entities.
The same occurred in when the territories of Baja California Sur and Quintana Roo ascended to the category of state, again under the procedure of Article instead of this specific procedure.. The problems of using the generic procedure contained in Article instead of the flexible one in Sections I and II repealed of Article 73 are not important. By using Article , the amendment is carried out by a procedure with even more guarantees.
Furthermore, Congress actually has mandatory intervention in the abovementioned sections. Therefore, it would not be possible to claim that the amendments that turned territories into states are void because, in addition to the procedure of Article II, a greater majority was required and subsequently approved by the Federal Entities. The real problem may arise with the next procedure..