Eleanor Finch
The main informal method of modifying the US Constitution is through the interpretation of the document by the nation's courts. This is distinct from formal amendments, which directly change the written word of the Constitution. Informal amendments are influenced by societal change and shifts in how constitutional rights are applied. For example, the expansion of voting rights to include poor whites, black males, and women was a result of societal changes brought about by the Industrial Revolution and the burgeoning middle class. This expansion of voting rights was later formally recognized in the Fifteenth Amendment (1870) and the Nineteenth Amendment (1920). Congress can also informally amend the Constitution by passing laws that add details or further define expressed powers, such as expanding voting rights, seats in the House, or establishing a minimum wage.
| Characteristics | Values |
|---|---|
| Informal amendments | Changes that do not affect the written document but influence the way the Constitution is interpreted |
| Societal change | Expansion of voting rights to include poor whites, black males, and women |
| Congressional legislation | Enacting laws that expand the brief provisions of the Constitution or further define expressed powers, such as expanding voting rights, seats in the House, and minimum wage |
| Presidential powers | Making agreements with foreign governments, differentiating between Congress's power to declare war and the president's power to wage war |
| Judicial interpretation | The Supreme Court's power to nullify actions of the national government if they conflict with the Constitution, as seen in Marbury v. Madison |
| Political parties | Influencing the political process through candidate selection, establishing party platforms, and organizing Congress based on party representation |
| Special interests | Influencing elected officials through campaign financing and information dissemination |
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What You'll Learn
Congressional legislation
The US Constitution has been changed countless times by means other than the formal amendment process. One of the main informal methods of modifying the Constitution is through Congressional legislation.
Congress can pass laws that define and interpret the meaning of constitutional provisions, thereby informally amending the Constitution. This can be done by enacting laws that expand the brief provisions of the Constitution or by enacting laws that further define expressed powers. For example, Congress has the power to regulate commerce between states, also known as "interstate commerce". Over the years, Congress has passed numerous laws citing its power to regulate interstate commerce, including gun control laws that have virtually amended the Second Amendment.
Congress has also expanded voting rights, seats in the House, and established a minimum wage, all of which are examples of informal amendments. Additionally, Congress has used its ""enumerated" powers granted in Article I, Section 8, to pass laws that add details and modify the Constitution.
It is important to note that while these informal methods of amending the Constitution are significant, they do not change the written word of the document itself. Instead, they influence the way the Constitution is interpreted and applied.
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Judicial interpretation
There are several approaches to judicial interpretation, including originalism, pragmatism, and structuralism. Originalism, as the name suggests, involves interpreting the Constitution according to its original meaning at the time of its enactment. Originalists argue that the text of the Constitution has an "objectively identifiable" public meaning that has not changed over time. This approach focuses on the historical, literary, and political context of the framers to derive underlying principles that can be applied to contemporary situations. A notable proponent of originalism was former Supreme Court Justice Antonin Scalia, who believed that the text of the Constitution should mean the same today as it did when it was written.
Pragmatist approaches involve weighing the practical consequences of different interpretations of the Constitution. This can include considering the future costs and benefits of an interpretation to society or the political branches, and selecting the interpretation that may lead to the best outcome. Another type of pragmatist approach involves assessing the role of the judiciary in deciding a question of constitutional law.
Structuralism involves interpreting a particular constitutional principle in the context of the larger constitutional document or framework. This includes considering the relationships between the three branches of the federal government (separation of powers), the relationship between the federal and state governments (federalism), and the relationship between the government and the people.
Judicial precedent is another significant factor in judicial interpretation. This involves drawing on the Supreme Court's prior decisions on constitutional law to provide principles, rules, or standards for future cases with similar facts. This approach is known as stare decisis, where judges look to the decision of a previous, similar case to guide their judgment in a current case.
Founders' Intent is another method of judicial interpretation, where judges attempt to discern the intentions of the authors of the Constitution. This can involve interpreting the text in its original context to understand the underlying principles and applying them to modern times.
In summary, judicial interpretation plays a crucial role in modifying the Constitution through various approaches, including originalism, pragmatism, structuralism, judicial precedent, balancing, and Founders' Intent. These methods allow judges to interpret and apply the Constitution in a way that aligns with its original meaning, societal changes, and the specific context of each case.
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Societal change
The main informal method of modifying the US Constitution is through societal change. This occurs when shifts in societal norms and values lead to changes in how constitutional rights are applied and interpreted. Here are some examples and explanations of how societal change has played a pivotal role in modifying the Constitution:
Expansion of Voting Rights: One of the most significant examples of societal change impacting the Constitution is the expansion of voting rights. Originally, only land-owning white males could vote in federal elections. However, during the Industrial Revolution in the 1800s, society underwent significant changes with the growth of the middle class. This societal shift led to a focus on expanding rights for the middle and working classes. As a result, the right to vote was gradually extended to a larger portion of the population. While there were formal amendments like the Fifteenth Amendment (1870) and the Nineteenth Amendment (1920) that granted voting rights to specific groups, the underlying driver for these amendments was the changing societal norms and values.
Judicial Interpretation: The Supreme Court and other courts play a crucial role in interpreting and applying the Constitution. Through landmark cases such as Marbury v. Madison, Brown v. Board of Education, and Roe v. Wade, the courts have shaped the understanding and interpretation of constitutional rights. These interpretations often reflect the changing societal norms and values, influencing how the Constitution is applied in practice.
Political Parties and Special Interests: Political parties, despite not being mentioned in the Constitution, have been a driving force behind constitutional changes. They have influenced the political process by selecting candidates, establishing party platforms, and shaping policy agendas. Additionally, special interests have played a role in informal amendments by exerting influence over elected officials through campaign financing and information dissemination.
Congressional Legislation: Congress has the power to pass laws that expand upon or further define the provisions of the Constitution. By enacting such legislation, Congress can effectively modify how the Constitution is interpreted and applied without formally amending the document. This process allows for the incorporation of societal changes and evolving norms into the constitutional framework.
Presidential Actions: Presidents have also contributed to informal amendments by using their powers to make agreements, send troops, and delineate unclear constitutional provisions. For example, presidents have made informal executive agreements with foreign governments, bypassing the constitutional requirement for Senate approval of formal treaties. These actions reflect the evolving nature of governance and societal expectations.
In conclusion, societal change is the primary driver of informal modifications to the US Constitution. It influences how constitutional rights are interpreted and applied, leading to shifts in societal norms, values, and expectations. While formal amendments are significant, the dynamic nature of society often prompts changes to the Constitution through these informal methods.
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Political parties
In the formative years of the United States, political factions or parties emerged during the debate over the ratification of the federal Constitution of 1787. The Federalists, led by Alexander Hamilton, wanted a strong central government, while the Anti-Federalists, led by Thomas Jefferson, advocated for states' rights. These opposing factions would become the country's first political parties. James Madison, often regarded as the "Father of the Constitution of 1787," established the Jeffersonian-Republican Party with Thomas Jefferson.
While formal amendment processes are rigorous and time-consuming, requiring consensus across multiple political entities, informal methods such as legislation and judicial interpretation offer more flexibility and adaptability. Political parties, through their legislative powers, can pass laws that expand or clarify constitutional provisions, effectively modifying the Constitution without formally amending it.
In conclusion, political parties have been instrumental in shaping the United States Constitution, both directly and indirectly. Their influence extends from the early days of the nation's founding to the present, where they continue to play a dynamic role in interpreting and adapting the Constitution to meet the evolving needs of society.
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Special interests
An example of this is the Blaine Amendment, proposed by Congressman James G. Blaine in 1875. The amendment aimed to apply the religion clauses of the First Amendment directly to the states, prohibiting the use of public funds for parochial (church-run) education. While the House of Representatives passed it, it fell short in the Senate, preventing it from becoming a formal part of the Constitution. However, it still influenced how the Constitution was interpreted and applied, leaving a lasting legacy on educational policy.
Political parties, despite not being mentioned in the Constitution, have also driven constitutional changes. They have created and amended the process for nominating presidential candidates and influenced the legislative process through party representation and majority power. Additionally, presidents have extended their authority over foreign policy by making informal executive agreements, bypassing the Senate's role in approving formal treaties.
Societal changes have also played a role in informal amendments. For instance, the expansion of voting rights beyond land-owning white males occurred due to societal shifts during the Industrial Revolution. While formal recognition came later with amendments, societal changes had already prompted a reinterpretation of constitutional rights.
Overall, special interests, political parties, and societal changes have all contributed to the informal amendment process, shaping how the Constitution is understood and implemented without directly altering its text.
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Frequently asked questions
Informal amendments to the constitution are changes that do not affect the written document but influence the way it is interpreted.
Societal changes can lead to shifts in how constitutional rights are applied. For example, in the 1800s, the right to vote was expanded beyond land-owning white males due to societal changes brought about by the Industrial Revolution.
Political parties have influenced constitutional changes by selecting candidates, establishing party platforms, and amending nomination processes. They have also organised Congress based on party representation and influenced the appointment of government positions.
Congress can pass laws that interpret or expand upon the Constitution's provisions. For example, Congress has passed gun control laws under the pretext of regulating interstate commerce.
