Chapter 3:3: informally Amending the Constitution

Objectives: 3:3 Informal Amendments

o Students will examine the informal

methods of amending the

Constitution.

• (Pro 15:22) Without counsel

purposes are disappointed: but

in the multitude of counsellors

they are established.

Informal Amendments:

o The process by which many changes have been made in the Constitution that have not led to changes in the document’s written words.

o These informal amendments are the result of the day to day, year to year experiences of government under the constitution.

Informal Amendments:

1. The passage of basic legislation

by congress.

2. Actions taken by the President

3. Decisions of the Supreme Court.

4. Activities of political parties

5. Custom

BASIC LEGISLATION:

o Congress has been a major agent

of informal amendment in two

ways.

o First, it has passed many laws to

spell out several of the

Constitution’s brief provisions.

BASIC LEGISLATION:

o Congress has added flesh to the bones of those sections of the Constitution the Framers left purposely skeletal for Congress to add details and meaning as circumstances have required.

o For example, Article II creates only the offices of President and Vice President.

o The many departments, agencies, and offices in the huge executive branch have been created by acts of Congress.

BASIC LEGISLATION:

o Second, Congress has added to the Constitution by the way in which it has used many of its powers.

o The constitution does not directly answer such questions as what “interstate commerce” involves.

o In passing thousands of statutes under the Commerce Clause, Congress has defined the meaning of these words.

Executive Action:

o In the Constitution, congress declares war but the President is the commander in Chief of the nation’s armed forces.

o Acting under that authority, several Presidents have made war without the benefit of a congressional declaration of war.

o Presidents have used the armed forces abroad in combat without such a declaration on fewer than 200 separate occasions in American history.

Executive Agreement:

o A pact made by the President directly with the head of a foreign state.

o The principal difference between these executive agreements and treaties is that they need not be approved by the senate.

o Executive agreements are as legally binding as treaties.

Court Decisions

o The nation’s courts, most tellingly

the United States Supreme

Court, interpret and apply the

Constitution in many cases they

hear.

Party Practices:

o Nation’s political parties have also been a major source of informal amendments throughout the years.

o Constitution makes no mention of political parties.

o The Framers and George Washington despised it.

Party Practices:

o Neither Constitution, nor any law

provides for the nomination of

candidates for the presidency.

o From the 1830s, the major

parties have held national

conventions to do just that.

Party Practices:

o The parties have converted the Electoral College, the body that makes the formal selection of the nation’s President, from what the Framers intended into a “rubber stamp” for the popular vote in presidential elections.

o Both houses business is based on the political parties.

Customs:

o Unwritten customs may be as

strong as written laws, and many

customs have developed in our

governmental system.

o Again, there are many examples.

o By custom, are 14 executive

departments.

Customs:

o On each of the eight occasions

when a President died in office, the

Vice President succeeded to that

office, most recently in 1963.

o Yet, the written words of the

Constitution did not provide for this

practice until the adoption of the

25th Amendment in 1967.

Customs:

o The no-third term was a tradition that started with George Washington but FDR broke it and then became the 22d Amendment to the Constitution.

o So what has been an informal amendment, became a written part of the Constitution itself.

o Do you think the president should be able to

run more than two terms in office?