Omar Bennett
The United States Constitution has a formal amendment process outlined in Article V, but there is no official informal amendment process. However, the Founding Fathers provided the government with the flexibility to interpret and apply the Constitution in ways that allow it to change. One example of an informal amendment process is congressional legislation, where Congress passes laws that expand or further define the provisions of the Constitution. Another example is judicial interpretation, where the Supreme Court has interpreted and applied the Constitution as it sees fit in cases such as Marbury v. Madison. Political parties and special interests have also been major sources of informal amendments by influencing the political process through candidate selection and campaign financing, respectively.
| Characteristics | Values |
|---|---|
| Informal process of amending the U.S. Constitution | Congressional legislation |
| Two ways in which Congress may informally amend the Constitution | Enacting laws that expand the brief provisions of the Constitution |
| Enacting laws that further define expressed powers | |
| Examples of expanding provisions | Expanding voting rights, seats in the House, and minimum wage |
| Presidents have used their powers to | Delineate unclear constitutional provisions |
| Differentiate between Congress's power to declare war and the president's power to wage war | |
| Extend their authority over foreign policy by making informal executive agreements with representatives of foreign governments | |
| Avoid the constitutional requirement for the Senate to approve formal treaties | |
| The nation's courts interpret and apply the Constitution as they see fit | Marbury v. Madison, a court case involving the process of informal amendment |
| Brown v. Board of Education and Roe v. Wade | |
| Each branch of government has developed traditions that fall outside the provisions of the Constitution | The Executive Branch tradition that a president would not serve a third term |
| The Executive Advisory Board, known as the President's Cabinet, and both houses meeting to hear the State of the Union | |
| Political parties have been a major source of informal amendment | Influencing the political process through the selection of candidates and the establishment of national and local party platforms |
| Special interests have been a major source of informal amendment | Influencing the political process through campaign financing and information dissemination |
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What You'll Learn
- Congress passes laws to define and interpret the meaning of constitutional provisions
- The nation's courts interpret and apply the Constitution as they see fit
- Special interests influence the political process through campaign financing
- Political parties influence the political process through candidate selection
- Presidents expand their authority by making informal executive agreements
Congress passes laws to define and interpret the meaning of constitutional provisions
The US Constitution is the nation's fundamental law, and it outlines a basic structure for the national government. However, it is a flexible document, and its interpretation and application have evolved through an informal amendment process. This process has allowed the Constitution to adapt to societal changes that the Founding Fathers could not have foreseen. While there is no official informal amendment process outlined in the Constitution, Congress has played a crucial role in interpreting and applying the Constitution through legislation.
Congress can pass laws that define and interpret the meaning of constitutional provisions, which is an example of an informal process of amending the Constitution. This process involves two main approaches. Firstly, Congress can enact laws that expand upon the brief provisions of the Constitution. For instance, the Constitution grants Congress the power to "declare war". However, through informal amendment, the President's power to "wage war" has been established, differentiating it from Congress's power to declare war. This interpretation has allowed the President to exert more authority over foreign policy.
Secondly, Congress can enact laws that further define the expressed powers in the Constitution. An example of this is the Judiciary Act of 1789, which was passed by the first elected Congress. This Act established the federal court system, as outlined in Article III of the Constitution, which states the need for a Supreme Court and "such other courts as Congress deems necessary." By passing this Act, Congress interpreted and defined the meaning of “necessary" in Article III, thereby influencing the structure of the judiciary.
Another example of Congress interpreting the Constitution is the Necessary and Proper Clause (also known as the Elastic Clause or Sweeping Clause). This clause grants Congress the power to "make all Laws which shall be necessary and proper for carrying into Execution" the federal powers granted by the Constitution. This clause has been interpreted to authorise Congress to legislate "in all cases for the general interests of the Union", giving it a broad mandate to pass laws that support the effective functioning of the government.
In conclusion, while the formal amendment process outlined in Article V of the Constitution is the only official way to change it, Congress plays a significant role in the informal amendment process. Through its legislative power, Congress can interpret and define the meaning of constitutional provisions, thereby influencing the application of the Constitution in ways that were not explicitly outlined by the Founding Fathers.
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The nation's courts interpret and apply the Constitution as they see fit
The United States Constitution is the nation's fundamental law, and it has been amended several times since its ratification in 1788. The amendment process outlined in Article V of the Constitution is the only formal way to change it. However, there are also informal amendment processes that allow for flexibility and interpretation by the different branches of government.
The nation's courts, including the Supreme Court, play a significant role in interpreting and applying the Constitution. This is evident in cases such as Marbury v. Madison, where the Supreme Court asserted its power to nullify actions of the national government if they conflict with the Constitution. The courts consider various factors and approaches when interpreting the Constitution, including pragmatism, moral reasoning, and national identity or "ethos."
Pragmatist approaches involve weighing the practical consequences of different interpretations and selecting the one that may lead to the best outcome for society or the political branches. Courts may also consider the constructive role they can play in deciding constitutional law. Moral reasoning, on the other hand, argues that moral concepts and ideals underlie certain terms in the Constitution, such as "equal protection" and "due process of law," and these should guide judges' interpretations.
The concept of a "national ethos" is also relevant, drawing on the values and character of American national identity and institutions to elaborate on the Constitution's meaning. Additionally, structuralism as a mode of interpretation considers the relationships between the three branches of the federal government, federalism, and the relationship between the government and the people. Historical practices and precedents are also important sources of constitutional meaning, as seen in Dickerson v. United States, where the Court upheld Miranda v. Arizona due to its integration into routine police practice.
While the courts interpret and apply the Constitution, Congress also plays a role in the informal amendment process by passing laws that define and interpret constitutional provisions. They can expand on brief provisions and further define expressed powers, such as expanding voting rights or establishing a minimum wage. Presidents have also used their powers to clarify unclear constitutional provisions and expand their authority over foreign policy through informal executive agreements.
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Special interests influence the political process through campaign financing
The US Constitution is a flexible document that has been able to grow and change as the country has evolved since its ratification in 1788. Although Article V outlines the formal two-step process for amending the Constitution, there is no official informal amendment process. However, the different branches of government have applied and interpreted the Constitution in ways that have allowed it to change over time.
Congress, for instance, has passed laws that expand and further define the provisions of the Constitution. This includes expanding voting rights, seats in the House, and introducing a minimum wage. Presidents, too, have used their powers to delineate unclear constitutional provisions, such as making a distinction between Congress's power to declare war and the president's power to wage war.
Political parties, special interests, and lobbyists also influence the political process and can lead to informal amendments. Special interests, for example, can exert influence over elected officials through campaign financing. A handful of wealthy donors dominate electoral spending in the US, and Super PACs allow billionaires to contribute unlimited amounts to campaigns. This has led to concerns about economic bias, with the super-wealthy having a disproportionate influence on politics and policy.
The influence of special interests through campaign financing can be seen as a form of lobbying, which is the attempt by a group to influence a political outcome. Lobbying can take many forms, and lobbyists may work inside or outside the system. While lobbying can be seen as a way to enhance democracy by allowing more voices to engage in the political process, it can also lead to factionalism, where small groups with shared interests gain political attention at the expense of the majority.
The number of lobbyists is a point of contention, and attempts have been made to reform lobbying practices, such as the Honest Leadership and Open Government Act of 2007, which tightened restrictions on campaign contributions. However, there is still a need for greater transparency and enforcement of campaign finance rules to limit the influence of special interests and ensure that the political process serves the common good.
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Political parties influence the political process through candidate selection
Political parties play a critical role in influencing the political process through candidate selection. Firstly, they elevate candidates for office who are capable and likely to appeal to voters, particularly at the local level, where they encourage talented individuals to run for office. At the state and national levels, parties are responsible for narrowing down the field of potential candidates and assessing their commitment to democratic norms. This role acts as a crucial institutional barrier against demagogues or would-be authoritarians seeking elected office.
However, the influence of political parties through candidate selection can also have unintended consequences. The adoption of partisan primaries, for example, aimed to empower voters and increase their confidence in the democratic process, but it weakened the ability of party leaders to effectively vet candidates, leading to a decrease in experienced candidates and an increase in posturing. This dynamic of weak parties and strong partisanship can lead to the endorsement of unrepresentative and even authoritarian factions.
Additionally, in a "candidate-centred" political landscape, the influence of political parties on representatives can be minimised through practices like recalling officeholders, which is designed to ensure that elected officials act in the interests of their constituency rather than their political party.
The selection of candidates by political parties also contributes to the informal process of amending the U.S. Constitution. Political parties, along with other institutions, interpret and apply the Constitution as they see fit, influencing how it is amended over time. This flexibility allows the Constitution to adapt to societal changes and technological advancements that the Founding Fathers could not have foreseen.
Congress, for example, can pass laws that expand or further define the provisions of the Constitution, such as expanding voting rights or establishing a minimum wage. Presidents, too, have extended their authority through informal executive agreements with foreign governments, bypassing the requirement for Senate approval of formal treaties. These actions by political institutions, including parties, shape the interpretation and application of the Constitution, constituting an informal amendment process.
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Presidents expand their authority by making informal executive agreements
The US Constitution does not explicitly grant the president the authority to enter into executive agreements. However, they may be authorized to do so by Congress or based on their power to conduct foreign relations. Executive agreements are informal and do not require the approval of two-thirds of the Senate, as formal treaties do.
Presidents have used executive agreements to expand their authority and influence foreign policy. For example, President Monroe entered into an agreement in 1817 to define the limits of armaments on the Great Lakes. Similarly, between 1882 and 1896, a series of agreements were made with Mexico, allowing both countries to pursue marauding Indians across their shared border.
Another example of an informal amendment is the expansion of voting rights. While the Fourteenth Amendment (1868) extended citizenship to African Americans, it was the Fifteenth Amendment (1870) that gave them the right to vote, regardless of race, colour, or previous servitude. The Nineteenth Amendment (1920) further expanded voting rights to women.
The nation's courts, including the Supreme Court, have also played a role in interpreting and applying the Constitution through cases such as Marbury v. Madison, Brown v. Board of Education, and Roe v. Wade. These interpretations have influenced the political process and resulted in informal amendments to the Constitution.
Additionally, political parties have influenced the informal amendment process by selecting candidates and establishing national and local party platforms. Special interests have also played a role by exerting influence over elected officials through campaign financing and information dissemination.
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Frequently asked questions
There is no official informal amendment process outlined in the Constitution. However, the Founding Fathers provided the different branches of government with the flexibility to apply and interpret the Constitution in ways that allow it to change. The various informal processes by which the Constitution is changed include Congress passing legislation to define the details of needed additions to the basic framework.
An example of an informal process to amend the constitution is when Congress passes laws that expand the brief provisions of the Constitution, such as expanding voting rights, seats in the House, and minimum wage.
The nation's courts interpret and apply the Constitution as they see fit, as in *Marbury v. Madison*, a court case involving the process of informal amendment. Political parties have also been a major source of informal amendment by influencing the political process through the selection of candidates and the establishment of national and local party platforms.
