Simone Lawson
The U.S. Constitution can be amended informally through various means, including legislation, executive actions, judicial interpretations, political party practices, and established customs. These processes allow for the alteration of the Constitution's application and interpretation without modifying its original text. The Founding Fathers designed the Constitution to be flexible, enabling it to adapt to societal changes and technological advancements. This flexibility has allowed for informal amendments that address social and legal shifts without necessitating formal changes to the document. Congress plays a pivotal role in this process by passing laws that elaborate on or expand the Constitution's provisions. Similarly, the Supreme Court influences how the Constitution is understood and applied through its rulings and interpretations. These informal amendment processes have proven essential in ensuring the Constitution remains relevant and adaptable to modern society.
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What You'll Learn
- Congress passes laws that interpret and expand on the Constitution
- Judicial interpretations by the courts, especially the Supreme Court
- Executive actions by the President, such as executive orders
- Political party practices, such as holding conventions to nominate the President
- Established customs and traditions, such as the President's Cabinet
Congress passes laws that interpret and expand on the Constitution
The United States Congress is made up of the House of Representatives and the Senate, established by Article I of the Constitution. The Constitution grants Congress the sole authority to enact legislation and declare war, and the right to confirm or reject Presidential appointments.
Congress has the power to pass laws deemed "necessary and proper" to carry out the powers given to the government under the Constitution. This includes the establishment of an annual budget, levying taxes and tariffs, and mandating spending on specific items.
Congress plays a crucial role in the amendment process, as it can pass legislation to define and expand on the Constitution's basic framework. For example, Article III of the Constitution establishes the Supreme Court and "such other courts as Congress deems necessary." In line with this, the first Congress passed the Judiciary Act of 1789, creating the federal court system.
Additionally, Congress has the authority to regulate elections nationwide. In 1842, the 27th Congress passed a law requiring the election of Representatives by districts, and it has since expanded on this requirement. Congress also has the power to define and expand on Constitutional provisions through its legislative authority. For instance, Congress expanded the duties of the Secret Service to include Presidential protection after the assassination of President William McKinley in 1901.
The legislative process involves both the House and the Senate. A bill must pass both houses before going to the President for consideration. If the President agrees with the bill, they may sign it into law. However, Congress can override a presidential veto with a two-thirds vote in both chambers.
The right to petition, guaranteed by the First Amendment, allows citizens and state legislatures to transmit proposals to Congress. These proposals can influence legislation and shape the interpretation and expansion of the Constitution.
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Judicial interpretations by the courts, especially the Supreme Court
The US Constitution is interpreted and applied differently by different judges and justices, and this can result in informal amendments to the Constitution. There are several schools of thought on how to interpret the Constitution, and these are considered during the nomination and confirmation process for new Supreme Court justices.
Textualism is a mode of interpretation that focuses on the plain meaning of the text of a legal document. Textualism usually emphasizes how the terms in the Constitution would have been understood by people at the time of ratification, as well as the context in which those terms appear. Textualist approaches focus solely on the text of the document.
Originalism is another approach, which considers the meaning of the Constitution as understood by the populace at the time of the Founding. Originalists generally agree that the Constitution's text had an "objectively identifiable" or public meaning at the time of the Founding that has not changed over time. The task of judges and justices is to construct this original meaning. Originalists believe that the Constitution's text has not changed over time and that the document should be interpreted in light of changing values and new circumstances.
A third approach is the legal model, which considers constitutional interpretation style and justice ideology.
Justices who view the Constitution as a living document tend to rule more often in favour of the individual compared to the originalist styles. The interpretive style of a justice can be an important indicator of how they will vote.
The most commonly cited source of constitutional meaning is the Supreme Court's prior decisions on questions of constitutional law. Judicial precedent provides possible principles, rules, or standards to govern judicial decisions in future cases with arguably similar facts.
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Executive actions by the President, such as executive orders
While the US Constitution does not outline an informal amendment process, the document's flexibility has allowed for changes and interpretations that were not explicitly foreseen by the Founding Fathers. One way in which the Constitution has been informally amended is through executive actions by the President, such as executive orders.
Executive orders are written policy directives issued by the President and carry almost the same power as federal law. However, they are not explicitly defined in the Constitution and are based on historical practice, executive interpretations, and court decisions. While the Constitution does not grant the President the general power to issue executive orders, this authority is accepted as an inherent aspect of presidential power. The President's ability to issue directives stems from the Constitution and the powers granted by Congress.
Article II, Section 1 of the Constitution, for instance, vests executive powers in the President, requiring them to "take Care that the Laws be faithfully executed." Additionally, Article II, Section 2 states that the President is the "Commander in Chief of the Army and Navy of the United States." The President also has broad powers in areas such as the control and operation of the federal government, federal agencies, and foreign affairs.
Presidents have used their executive powers to make informal amendments to the Constitution. For example, President Donald Trump issued an executive order withholding federal funds from "sanctuary cities" that did not share immigration and citizenship status information with federal authorities. This order was challenged in the Ninth Circuit Court of Appeals, which found that the President's power was at its "lowest ebb" in this case.
While the President can use executive orders to shape policy and interpret the Constitution, they cannot amend it unilaterally. Amending the Constitution requires a formal process involving Congress and ratification by a majority of states. The President does not have a formal constitutional role in this process, and their signature is not required for proposing or ratifying amendments.
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Political party practices, such as holding conventions to nominate the President
The United States presidential nominating convention is a political convention held every four years by most political parties fielding nominees for the upcoming US presidential election. The convention's formal purpose is to select the party's nominees for the popular election as President and Vice President, as well as to adopt a statement of party principles and goals, known as the party platform. The earliest public national presidential nominating conventions have been traced back to the 1832 election.
The presidential nominating process in the United States is one of the most complex, lengthy, and expensive in the world. Every four years, presidential candidates compete in a series of state contests during the winter and spring before the general election to gain their party's nomination. At stake in each contest—either a primary or caucus—is a certain number of delegates, or individuals who represent their states at national party conventions.
To become the presidential nominee, a candidate typically has to win a majority of delegates. This usually happens through the party's state primaries and caucuses. State delegates go to the national convention to confirm their choice of candidates by casting votes. But if no candidate gets the majority of a party's delegates during the primaries and caucuses, convention delegates choose the nominee through additional rounds of voting.
In rare cases, none of the party's candidates may have a majority of delegates going into the convention. The convention is then considered "contested". Pledged delegates usually have to vote for the candidate they were awarded at the start of the convention. Unpledged delegates can vote for any candidate. Superdelegates in the Democratic Party cannot vote in the first round of a contested convention. However, they can vote in the first round of a convention in which a candidate already has enough delegates through primaries and caucuses to get the nomination.
The US Constitution has been informally amended over time through political party practices, such as holding conventions to nominate the President. Political parties are a major source of informal amendments, although they are not mentioned in the Constitution.
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Established customs and traditions, such as the President's Cabinet
The US Constitution is a flexible document that has been designed to adapt to societal changes. While Article V of the Constitution outlines the formal process of amending it, there is no official informal amendment process. However, the document's flexibility allows for interpretation and application in ways that enable it to change with the times. One way this happens is through established customs and traditions, such as the President's Cabinet.
The President's Cabinet is a recognised tradition that influences how executive power is exercised. It is not stated in the Constitution but has become an accepted part of the constitutional order. This is an example of how customs and traditions can lead to informal amendments to the Constitution.
Customs and traditions can emerge and become widely accepted as part of the constitutional system over time, even if they are not explicitly mentioned in the document. This is an important aspect of the Constitution, allowing it to remain relevant and adaptable to modern society.
The Founding Fathers recognised that the country would change in ways they could not foresee. They therefore provided the different branches of government with the flexibility to interpret and apply the Constitution as needed. This has allowed the Constitution to remain a relevant and effective framework for governing the nation, despite enormous social, technological, economic, and political changes since its ratification in 1788.
While the Constitution has only been formally amended 27 times, it has been informally amended numerous times through customs and traditions, judicial interpretation, and legislative action. These informal amendments have played a crucial role in adapting the Constitution to changing societal values and circumstances.
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Frequently asked questions
The U.S. Constitution can be amended informally through legislation, executive actions, judicial interpretations, political party practices, and established customs.
Congress has the power to pass laws that interpret and expand upon the provisions laid out in the Constitution. For example, the Voting Rights Act of 1965 was passed to ensure voting rights, which the Constitution guarantees but did not detail.
The Supreme Court plays a crucial role in interpreting the Constitution and can influence how it is applied in practice through its rulings. For example, in the Supreme Court case Roe v. Wade (1973), the Constitution was interpreted to include a woman's right to choose regarding abortion, reflecting changing societal attitudes.
