Institute of Modern Russia

Constitutions can be compared by numerous criteria, including how the Basic Law is changed through introducing amendments and additions. By this criteria, constitutions can be identified as “rigid” or “flexible.” “Rigid” constitutions are amended through a special procedure that is more complicated than the standard legislative process. Amendments can be put to a referendum, approved by regional legislative assemblies, or accepted twice using both methods. “Flexible” constitutions are amended in the same way as regular laws. No special procedure is needed in this case, since the written text of the Basic Law is absent [1].

 

Amendments to the U.S. Constitution

A joint resolution containing the draft of an amendment to the U.S. Constitution must be approved either by two-thirds of both chambers of Congress or by a special constitutional convention, which is summoned at the request of the legislative assemblies of two-thirds of all states. In both cases, the approved text of the amendment must be ratified either by three-fourths of the states’ legislative assemblies or three-fourths of the states’ ratifying conventions. The states’ approval of the amendment is final. Article 5 of the U.S. Constitution (1787) suggests that there are four possible ways to pass a constitutional amendment: approval by Congress and then by states’ legislatures; approval by Congress and then by states’ ratifying conventions; approval by constitutional convention and then by states’ ratifying conventions; or approval by constitutional convention and then by states’ legislatures. In practice, the first option has been applied most often. Only the 21st Amendment, which nullified the 18th Amendment (on Prohibition), has been passed by the second method: Congress—states’ ratifying conventions. Currently, the U.S. Constitution contains 27 amendments [2]. The first ten amendments are known as the Bill of Rights. Several explanations exist as to why provisions guaranteeing citizens’ political, civil and other rights were not included in the main text of the Constitution [3]. According to one of them, the authors of the Constitution considered these rights and freedoms to be so self-evident that a separate mention was not required. However, as the Constitution was being ratified, the state legislatures insisted that these guarantees be added as well. North Carolina and Rhode Island refused to ratify the Constitution altogether until the Bill of Rights was introduced [4], which eventually happened, when they were ratified by the necessary number of states by December 15, 1791. In other words, the first and the most significant change to the U.S. Constitution was passing amendments that didn’t just establish basic rights and freedoms, but also protected them from infringement, including by the government itself.

Out of subsequent amendments to the U.S. Constitution, only one turned out to be absolutely unnecessary and destructive: the 18th Amendment, which passed in 1919 and prohibited the “production, sale and transportation of intoxicating liquors… for beverage purposes,” as well as their import and export to the U.S. The consequences of 13 years of Prohibition turned out to be horrendous: a steep decrease in tax levies, the impossibility of legal liquor sales, and the loss of thousands of jobs due to closures of bars and alcohol factories, all of which dealt a hard blow to the restaurant industry. At the same time, organized crime flourished, and the volumes of contraband grew. The 21st Amendment, which nullified Prohibition in 1933, can be seen as a very positive development. 

All other amendments have primarily been aimed either at the expansion of citizens’ rights or at the limitation or clarification of government bodies’ powers, starting with the 11th Amendment (1795), which established immunity from prosecution for members “of any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state.” The 13th Amendment (1865) abolished slavery; the 14th Amendment (1868) provided an extended definition of citizenship; the 15th Amendment (1870) banned racial discrimination at elections; the 19th Amendment (1920) gave women the right to vote; the 23rd Amendment (1961) allowed residents of the District of Columbia to participate in presidential elections; the 24th Amendment (1964) abolished the electoral tax; and the 26th Amendment (1971) lowered the voting age to 18.

Other amendments have concerned government bodies. The 12th Amendment (1804) changed the primary order of presidential and vice-presidential elections and introduced an extraordinary election procedure. The aforementioned 14th Amendment includes the rather notable Article 3, according to which members of Congress, U.S. officials, and representatives of the three branches of government who swear an oath to support the Constitution and later participate in a mutiny or insurrection against the United States or aid their enemies, cannot be senators or house representatives, cannot elect the president or vice president, and cannot hold any civil or military office created by the U.S. or by an individual state. The 16th Amendment (1913) extended the tax authority of Congress; the 17th Amendment (1913) introduced direct elections to the Senate; the 20th Amendment (1933) defined the terms of presidential, vice-presidential and congressional authority, as well as the order of ascension to presidential office. The 22nd Amendment (1951) limited presidential office to two terms per individual, and the 25th Amendment (1967) clarified the issue of presidential succession and the terms for temporary assumption of presidential duties.

The 27th Amendment—which ruled that no law varying the compensation for senators and House representatives can take effect until the next election of representatives has taken place—has a very interesting history. In 1789, one of the U.S. founding fathers, President James Madison, prepared a draft for twelve constitutional amendments (ten of which eventually became the Bill of Rights). One of the suggested amendments was approved by two-thirds of the vote in both chambers of Congress but was initially ratified by only six states. This amendment was fully ratified more than 200 years later on May 7, 1992, thus becoming the 27th Amendment—the last one as of now.

 

Amendments to the Russian Constitution

The history of amendments to the Russian Constitution has unfolded in a completely different way. The most serious changes to the Basic Law text occurred not right after the Constitution was accepted, but nearly 27 years later, and the vector of this change was the opposite of its U.S. counterpart. All of the amendments to the Russian Constitution consistently strengthened the powers of a single authority—the president—and restricted the powers of the other branches, while completely eliminating government bodies that were deemed unnecessary by the Russian leadership (for example, the dissolution of Russia’s Supreme Arbitration Court in 2014). A number of amendments concerned the federal structure of the Russian Federation (acceptance and forming of new subjects of federation—Crimea and Sevastopol), the merging of subjects of federation (emergence or expansion of such subjects as the Perm, Krasnoyarsk, Kamchatka, and Zabaikalsky territories, as well as the Irkutsk region). However, none of these amendments compare to the 2020 transformation of the Constitution.

The constitutional amendments that came into effect on July 4, 2020, are unprecedented due to a number of factors. First, there’s the sheer number of amendments—206 in one set. Compare this to a mere 27 amendments to the U.S. Constitution in more than 200 years. Here we beat America once and for all: at least based on this metric, Russia can be the absolute champion. Second, the procedure of putting the amendments to a “nationwide vote” was invented specifically to pass them—no lawyer has ever heard about it before, nor was it mentioned in any normative act prior to Presidential Decree No. 32 “On the organization of preparation for the conducting of the nationwide vote on the subject of introducing amendments to the Constitution of the Russian Federation” on February 14, 2020. The fact that the nationwide vote never existed prior to the amendments was coyly admitted to by the Constitutional Court, which, however, noted that it has a special legal nature: “The constitutional lawmaker, relying on the principle of democracy, had the right to turn to the nationwide vote, which is not directly envisaged in the existing legislation, for the passing of the constitutional amendment, in order to legitimize his decision,” the court stated in its March 16, 2020, ruling. 

Among the 206 amendments, it is difficult to find those that would significantly improve the lives of the Russian people, and the State Duma’s assurances that they will protect citizens’ rights sound utterly unconvincing. Amendments concerning social and economic issues either establish the norms that already exist in federal law or in the Constitution itself or are declarative, propagandistic in nature. The new Part 5 of Article 75, which provides guarantees that the minimum wage will not be less than the subsistence rate for the employable population, is not new in essence. The existing Article 7 (1) of the Constitution already provides such guarantees for the minimum wage. Additionally, the Labor Code has long stated that the minimum wage cannot be lower than the subsistence rate. Another declaratory amendment on principles of universal pension provision changes nothing when it comes to the pension system’s effectiveness or to the government’s responsibilities for this issue. Besides, Article 7 (2) of the Constitution already proclaimed that Russia is a social state that supports families, the disabled, and senior citizens, and provides state pensions, benefits, and other social security guarantees.

A number of amendments are discriminatory in nature. These include an amendment on the Russian language as the language of the state-forming nation, as well as another one that defines marriage as a union between a man and a woman. Some amendments are clearly worded with the Soviet past in mind. The new Article 67.1 stating that Russia is the legal successor of the USSR could be music to the ears of those nostalgic for the Soviet Union. However, this sweet tune is not new: in its January 13, 1992, note, Russia’s Ministry of Foreign Affairs had already informed all heads of diplomatic missions that “the Russian Federation continues to exercise the rights and fulfill the responsibilities established by international treaties agreed upon with the USSR [...] The Ministry requests that the Russian Federation replace the USSR as a party to all effective international treaties.”

The amendments to Article 67 protecting Russia’s sovereignty and territorial integrity, as well as banning calls for alienation of a part of the country’s territory, might sound just as sweet but still are not new. The preamble to the Constitution proclaims the resurrection of Russia’s sovereign statehood, and the sovereignty norm is already included in Part 3, Article 1, and this norm is a foundation of the constitutional order. As for public calls for violating Russia’s territorial integrity, they already constitute a separate corpus delicti since 2014, according to Article 280.1 of the Criminal Code. Constitutional amendments on the protection of the historical truth and the impermissibility of undermining the heroic deeds of the Russian people who defended their land are unnecessary as well: both the historical truth and the heroic deeds of the people are protected by Article 354.1 of the Criminal Code.

When the draft amendments were introduced to the State Duma on January 20, 2020, some observers voiced concerns regarding the role of the State Council, whose role was suggested to be enshrined in the Constitution, even though this advisory body had already existed since 2000. But it turns out we should have worried about something entirely different—the “zeroing-out” of presidential terms and the amendment nicknamed “our response to the Curzon Ultimatum.” The latter (Article 125, Part 5.1 (b) of the Constitution) was added to the draft on February 18, 2020, following the Hague Court of Appeal’s verdict in the case of YUKOS shareholders vs Russia (reinstating an order that Russia should pay the $50 billion reward), with a goal of establishing the Russian Constitutional Court’s superiority over foreign or international courts, foreign or international arbitration courts, etc.

The 2020 constitutional amendments did not just “zero out” Vladimir Putin’s presidential terms (as well as Dmitriy Medvedev’s, although that is rarely mentioned), thereby essentially allowing him to stay in the office indefinitely, but also extended his powers. Now the president can do the following:

• govern the executive branch;
• appoint (following consultations with the Federation Council) several ministers to office, including security ministers (siloviki), the Minister of Justice, the Minister of Foreign Affairs, as well as prosecutors of various levels, including the General Prosecutor;
• remove the aforementioned officials from office without consultation or coordination;
• fire the Prime Minister without dissolving the government;
• dissolve the State Duma not only in the event that a suggested candidate for the Prime Minister position has been rejected three times, but also if more than a third of the suggested cabinet members have been rejected (except for the ministers appointed personally by the president);
• appoint and fire members of the Federation Council—up to 30 members, including seven lifetime senators;
• become a lifetime member of the Federation Council once his term in office is over or if he resigns early, though he has a right to refuse (Article 95, part 2 (b) of the Constitution);
• initiate the procedure to terminate powers of the chief justices of the Constitutional and Supreme Courts and their deputies, as well as the chairmen and judges of cassation and appeal courts.

A prominent legal scholar, professor at the Higher School of Economics Mikhail Krasnov offered an excellent commentary on the consulting role of the Federation Council in the appointment of ministers and prosecutors: “One could call this game ‘let’s pretend it’s the U.S. Senate.’ (By the way, a whole norm is being changed to make this dream come true—call members of Federation Council ‘senators.’) When the Federation Council gains the same political weight as the U.S. Senate, we can talk about senators. So far, this is make-believe.”

Comparing the history of constitutional amendments in Russia and in the U.S., the following conclusions can be drawn:

• In the U.S., the amendments were always passed in accordance with the constitutionally established procedure;
• In Russia, the “nationwide vote” procedure was invented with the sole goal of legitimizing the 2020 amendments;
• Nearly all U.S. amendments are aimed either at establishing and expanding citizens’ rights or at limiting or clarifying the powers of various government bodies;
• The Russian amendments barely improved citizens’ lives, while mostly expanding presidential powers. Hence, Russia created a constitutional structure where the president controls all three branches of power, and no one has the opportunity to resist him. 

What about impeachment, you may ask? But what impeachment? In the 1990s, impeachment procedures against President Boris Yeltsin were initiated three times. And even then, in the era of the so-called “weak” personalist regime, these attempts did not succeed. The chances of a president being impeached in the era of the “strong” personalist regime, especially after the 2020 constitutional amendments came into force, are virtually zero [7].

 

References: 

1. Mishin, A. Constitutional Law of Foreign Countries. Moscow, 2013.
2. Mishin, A. Vlasikhin, V. The US Constitution: Political and Legal Commentary. Moscow, 1985.
3. Ibid., p 171.
4. Ibid., p 172.
5. Palant, B. Bill of Rights. Moscow, 2019, p. 9.
6. See: Constitutional Reforms Foundation, “Constitutional Bulletin,” No. 5-23. March–April 2020, p. 143.
7. This terminology is used by legal scholars Mikhail Krasnov and Ilya Shablinsky in their book “Russian system of power: a triangle with one angle” (Moscow, 2008).

 

 Text translation: Elizaveta Agarkova.