Omar Bennett
The United States Constitution has a two-stage process for amendments: proposal and ratification. While amendments are typically proposed by two-thirds of both houses of Congress, there are also informal ways in which the Constitution is changed. Informal amendments do not affect the written document but influence the way it is interpreted. This can occur through societal change, judicial review, and executive agreements. An example of societal change leading to an informal amendment is the expansion of voting rights beyond land-owning white males in the 1800s due to a growing middle class. Judicial review, as demonstrated in the case of Marbury v. Madison, allows federal and state courts to review and interpret legislation within their jurisdiction. Additionally, presidents can make informal executive agreements with foreign governments, potentially bypassing the need for Senate approval of formal treaties. These informal amendments shape the interpretation and application of the Constitution without altering its text.
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What You'll Learn
Judicial interpretation
The US Constitution created a basic outline for the national government, and over time, Congress has passed legislation to define the details of needed additions to that framework. For example, Article III requires that there be a Supreme Court and "such other courts as Congress deems necessary." Once the first Congress was elected, one of its first actions was to pass the Judiciary Act of 1789, which created the federal court system.
Judges interpret the Constitution by examining the text, considering the intent of the framers, and applying it to modern contexts. They may also consider public policy implications and the potential impact of their decisions. Through these interpretive choices, judges can effectively amend the Constitution without formally changing the text.
For example, in the United States, the Constitution originally made no provision for nominating presidential candidates. Over time, political parties developed methods for nominating their candidates through conventions, primaries, and caucuses. This became customary, and in 1951, the Twenty-second Amendment was added to limit a president's time in office to two terms, formalizing this informal practice.
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Congressional legislation
Informal amendments to the US Constitution are changes that do not affect the written document but influence the way it is interpreted. There are two overall political processes through which informal amendments can occur: societal change and judicial review. Congressional legislation is an example of an informal process of amending the US Constitution. Congress can pass laws that spell out some of the Constitution's brief provisions, defining and interpreting the meaning of constitutional provisions.
Congress may informally amend the Constitution in two ways: by enacting laws that expand the brief provisions of the Constitution and by enacting laws that further define expressed powers. For example, Article III of the Constitution requires that there be a Supreme Court and "such other courts as Congress deems necessary." Following the election of the first Congress, one of their first actions was to pass the Judiciary Act of 1789, which created the federal court system.
Another example of an informal amendment through congressional legislation is the expansion of voting rights. Over time, societal changes led to a focus on expanding voting rights to the middle and working classes. While the Fifteenth Amendment (1870) and the Nineteenth Amendment (1920) formally recognised the voting rights of poor whites, black males, and women, the right to vote had already been informally extended to more and more people.
Additionally, informal amendments can occur through executive agreements, where presidents extend their authority over foreign policy by making agreements with representatives of foreign governments, bypassing the constitutional requirement for Senate approval of formal treaties. Examples of this include the Vietnam War and NAFTA.
It is important to note that all amendments to the Constitution have been proposed by Congress, following the two-stage process outlined in Article V: proposal and ratification. An amendment can be proposed by two-thirds of both houses of Congress and must be ratified by a favourable vote in three-fourths of all state legislatures or specially called ratifying conventions in three-fourths of the states.
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Executive agreements
The Supreme Court has ruled that executive agreements can supersede state laws, relying on the Constitution's vesting of foreign relations power in the national government. This was demonstrated in cases such as United States v. Belmont, where the Court gave domestic effect to the Litvinov Assignment, and American Ins. Ass'n v. Garamendi, where the Court held that California's Holocaust Victim Insurance Relief Act was preempted as it interfered with the Federal Government's conduct of foreign relations.
The domestic obligations imposed by executive agreements are less clear. While treaties explicitly override state law through the Supremacy Clause, executive agreements based solely on presidential power are not considered "treaties" and therefore may lack the same legal force. However, executive agreements entered into with congressional authorization or to fulfil treaty obligations may also derive preemptive force from the Supremacy Clause.
There have been attempts to limit the President's power in making executive agreements through constitutional amendments, such as the Bricker Amendment in the 1950s. However, these efforts have not succeeded.
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Societal change
Informal amendments to the Constitution are changes that do not affect the written document but influence the way it is interpreted and applied in practice. These amendments are often a result of societal change, which leads to shifts in how constitutional rights are understood and applied.
One example of how societal change has led to informal amendments is the expansion of voting rights. Originally, only land-holding white males could vote in federal elections. However, with the growth of the middle class during the Industrial Revolution in the 1800s, society began to focus on extending voting rights to the middle and working classes. While formal recognition of these rights was secured through the Fifteenth and Nineteenth Amendments, the initial shift in societal values played a crucial role in driving these changes.
Technological advancements have also played a significant role in informal amendments, particularly regarding the interpretation of the First Amendment's freedom of speech in the context of digital communication and social media. The Founding Fathers crafted the Constitution with inherent flexibility, allowing it to adapt to societal changes and remain relevant in the modern era.
Congressional legislation is another mechanism for informal amendments. For instance, the Civil Rights Act of 1964 expanded the interpretation of the Constitution concerning civil rights and discrimination, broadening the understanding of the Equal Protection Clause of the Fourteenth Amendment. Similarly, Congress can pass laws that further define the expressed powers of the Constitution, such as expanding voting rights, seats in the House, and establishing a minimum wage.
Court rulings and interpretations by the Supreme Court have also contributed to informal amendments. For example, in Brown v. Board of Education, the Supreme Court altered the interpretation of the Fourteenth Amendment, effectively changing racial segregation laws. In Miranda v. Arizona, the Court's ruling established the Miranda rights, which protect individuals' constitutional rights during police custody. These rulings set precedents that guide future similar cases, informally amending the Constitution through judicial interpretation.
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Judicial review
Informal amendments to the US Constitution are changes that do not affect the written document but influence the way it is interpreted. There are two overall political processes that can lead to informal amendments: societal change and judicial review. This answer will focus on the latter.
The Supreme Court has played a significant role in shaping the interpretation of the Constitution through its rulings on various cases. For example, in Citizens United v. Federal Election Commission, the Court interpreted the Constitution as not entitling corporations to the same rights as people and banning corporate campaign donations to candidates. In Brown v. Board of Education and Roe v. Wade, the Court's rulings set precedents that have had a profound impact on society.
Congress can also pass laws that interpret and define the meaning of constitutional provisions, effectively amending the Constitution informally. This can be done by enacting laws that expand the brief provisions of the Constitution or by clarifying expressed powers. An example of this is the Judiciary Act of 1789, which created the federal court system.
While judicial review allows the courts to check the actions of the national government, it is important to note that not all countries with a written constitution follow this practice. Some nations with constitutions that provide for a review of constitutional compatibility have established special constitutional courts with sole authority to question the constitutionality of primary legislation.
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Frequently asked questions
Informal amendments are changes that do not affect the written document but influence the way the constitution is interpreted.
Informal amendments are influenced by two overall political processes: societal change and judicial review.
In the 1800s, during the Industrial Revolution, society became focused on expanding rights for the middle and working classes. This led to the right to vote being extended to more people.
In Marbury v. Madison, the Supreme Court declared that federal courts had the power to nullify actions of the national government if they conflicted with the Constitution.
Congress can pass laws that interpret and expand upon the provisions of the Constitution. For example, Article III requires that there be a Supreme Court and "such other courts as Congress deems necessary." Congress then passed the Judiciary Act of 1789, creating the federal court system.
