Amendment

The act of altering a document by adding, substituting, or subtracting some part of it is to “amend” the document. Documents that are commonly amended include legislative bills, pleadings, contracts, and the U.S. Constitution. When the change takes place, it may be referred to as an “amendment.” In order to amend laws, statutes, the Constitution, and other political or social documents, specific steps must be followed. When amending a contract, all parties must agree, in writing, to the change, and when amending a court pleading, the other party must be served with the amended version. To explore this concept, consider the following amendment definition.

Definition of Amend

Verb

1. To alter or modify, add to or subtract from a legal document
2. To change some of the text, and often the meaning of, a bill, motion, constitution, contract, or other document.

Origin

1175-1225   Middle English amenden

Amending a Contract

Modifying a contract can be done through an amendment, which must be made in writing, and approved by all parties with their signatures. An amendment to any document does not replace the entire document, but changes only a portion that needs to be corrected, clarified, or otherwise updated. A document, such as a contract that needs many changes is often easier to read and enforce if it is rewritten. This is referred to as an “amendment and restatement” of the document, which carries the same identifying information as the original, such as the parties, dates, and intent of the document, before restating other terms. Such a document must be made in writing and agreed to by all parties.

Waiver or Consent vs. Amendment

On occasion, the parties to a contract agree to an action that would otherwise be prohibited by the contract. While it is not necessary to create an amendment to the contract, it is still important to put the agreement in writing. This can be done with a “waiver” or “consent.” A waiver or consent, both words for the same document, does not actually modify the original document, but describes the action, and how the parties have consented to it.

For example, John and Vince enter into a contract to start a new and innovative business, building from the ground up. The contract prohibits either man from talking about it, or disclosing any details, prior to a specified stage of development. At one point the parties agree to allow Vince to discuss certain terms with a potential investor, putting this modification in a written “consent.”

Creating the Amendment

An amendment refers to changes made after the original contract has been signed, and may take a variety of forms, including redline or strike-through text, a letter form, or even hand writing the amendment at the bottom of the contract. It is important for the amendment to be as specific as possible, avoiding ambiguity or confusion. Whatever the form chosen in creating an amendment, it must be signed by all parties involved.

Tips for Amending a Contract

When amending a contract, the parties should:

1. Avoid making multiple amendments, as this can cause confusion. It is better to create one amendment that revokes all amendments made at a prior time.
2. Restate the entire portion or provision rather than crossing out and changing certain words. This makes it easier for all parties to understand.
3. Ensure all parties involved have a copy of the amendment after signing.

Some contracts are very complicated, and may contain legal terms that are difficult to understand. In such a case, the most important tip for amending a contract is that it may be beneficial for the parties to seek the help of an experienced attorney in order to ensure the amendment does what they want it to do, and that it will be legally binding.

Amending the U.S. Constitution

Amending a contract or agreement is much easier than amending the United States Constitution. The authority to amend the Constitution, as well as the steps that must be taken, are written into the document itself. This authority helps ensure the entire document never has to be rewritten. Article V of the U.S. Constitution specifies who may propose amendments, what is required to ratify a proposed amendment, and how an amendment is to be put in place. Article V places a time limit for a proposed amendment to be ratified by Congress which, as of 2015, is seven years.

Throughout the Constitution’s more than 200-year history, it has been amended 27 times. Considering the length and complexity of this foundation of society, and the fact that the first 10 amendments were ratified by the First Continental Congress, this is an amazingly low number.

In modern times, amendments are sometimes proposed for the purpose of repealing previous amendments. For example, since 1989, several members of Congress have proposed an amendment to repeal the 22^nd Amendment, which places term limits on the U.S. President.

Constitutional Amendment Process

The first step in the Constitutional amendment process is the proposal. An amendment may be proposed by a two-thirds vote of both the Senate and House of Representatives, or it may be proposed by the legislatures of two-thirds of the states calling for a Constitutional Convention. Since the Constitution was ratified, more than 1,100 amendments have been proposed by Congress, but the states have never requested a new Constitutional Convention.

Ratification

After an amendment has been proposed in one of the two methods, the States must ratify it. This is done by gaining approval from at least three-fourths of the State legislatures or gaining the approval of three-fourths of the states in a ratifying convention. Only one amendment has been ratified through such a convention. That was the 21st Amendment, which repealed the 18th Amendment, which enforced prohibition.

Amendments to the U.S. Constitution

As of 2015, 33 amendments have been adopted by Congress and sent to the states for ratification. Of these, 27 have been approved and are part of the Constitution today.

Unsuccessful Amendments

There have been many amendments proposed that were never approved, such as:

• A balanced budget amendment, which would require the government to maintain a balanced budget all year. This type of amendment has been proposed on many occasions.
• The limitation of the house size amendment would have limited the number of representatives to the House of Representatives to one per every 50,000 citizens.
• The anti-flag burning amendment would have made the burning of the American flag illegal in all states.

The common belief is that things that can be accomplished without amending the Constitution do not necessarily need to be included. This is especially true with areas such as balancing the budget. It is assumed that the government would maintain a goal to have a balanced budget, regardless of whether or not it was put into the Constitution as an amendment.

Amending State Constitutions

Amending state constitutions is much more common than amending the U.S. Constitution, with some states having ratified more than 100 amendments. State constitutions are typically very long, and contain specific details that are not necessarily required in the U.S. Constitution. The procedures required in amending state constitutions vary from state to state, as some allow for action through state legislature, while others require a public vote.

Examples of State Procedures

• Texas – A constitutional amendment can only be proposed through a regular or special legislative session. In order for the amendment to be approved, a majority of voters must agree. The Texas Constitution has been in effect since 1876, and as of 2015, it has been amended more than 450 times.
• New York – An amendment may be proposed either by a majority vote of citizens in a general election, or by an absolute majority vote in a legislative session. In either case, the amendment must be ratified by a popular vote.
• California – Offers the most methods in which an amendment can be proposed. Amendments to the California State Constitution may be proposed by a legislative vote, by a popular voting initiative (election), or through a constitutional convention. Regardless of how an amendment is proposed, it must be ratified by a popular vote.

Related Legal Terms and Issues

• Contract – An agreement between two or more parties in which a promise is made to do or provide something in return for a valuable benefit.
• Majority – A number larger than half of the total.
• Popular Vote – The actual number of votes cast by qualified voters.