Sunday, September 14, 2008

Formal and Informal Constitution

The Constitution is a document that, even when written, was meant to change and grow as the fledgling nation it helped establish was changing and growing. Therefore, the Constitution can be changed through more than just the formal amendment process. The amendment process outlined in Article V of the Constitution is the only formal way the Constitution can be changed, but informally the Constitution is constantly changing through judicial interpretation, changing political practices, technology and increasing demands on policymakers.

The formal amendment process includes two steps, proposal and ratification, which can be completed in two different ways each. A constitution amendment can be proposed, as it has been all 27 times, by a two-thirds vote in each house of Congress, or by a national convention called by Congress at the request of two-thirds of the states’ legislatures. The amendment can then be ratified either by the agreement of three-fourths of the states’ legislatures, as has been done for 26 of the 27 amendments, or by special state conventions called in three-fourths of the states, as was done for the 21st amendment. The formal amendments to the Constitution have generally increased liberty and equality in the United States (the only solely economic amendment was the 16th amendment) and have shifted the Constitution from a document mainly focused on economics and logistics to a document focused on establishing and ensuring a government that secures the unalienable rights of its subjects.

The informal processes by which the Constitution is changed are much less defined than the formal amending process. Judicial interpretation is one of the most defined of the informal processes because of the precedent of judicial review established by Chief Justice John Marshall in the Marbury v. Madison case of 1803. In essence, judicial interpretation informally changes the Constitution because the Constitution generally means what the Supreme Court says it means. Changing political practices is important to informally changing the Constitution because of the impact it has on the unwritten constitution. The unwritten constitution includes all the precedents that have been established in government, such as the precedent of judicial review mentioned above and the precedent that electors in the Electoral College will vote for the candidate that the majority of the population in their state votes for. The unwritten constitution is also influenced by political parties, which although not mentioned in the Constitution have come to greatly define American politics. Technology has obviously had a great impact on political life as well as everyday life because the increase in technology means that we now have to deal with issues, such as abortion and nuclear weapons, which the framers of the Constitution couldn’t possibly have imagined. Also, since there are more issues politicians need to deal with in today’s world, such as abortion and nuclear weapons, there are increased demands on policymakers, especially the president. With the United States’ rise in international politics, the president, who is in charge of foreign affairs and foreign affair appointees, has gained much more power than he originally had in the Constitution. None of the informal changes have officially occurred to the Constitution, therefore, they are all part of the unwritten constitution, which although not a formal document greatly affects the way the formal Constitution is interpreted and used.

It is the great flexibility of the Constitution that has been outlined in the above essay and it is the great flexibility of the Constitution that has allowed for the document’s continued survival. In today’s world it seems everything can change in only minutes and it is only fitting that so too must the United States’ Constitution be able to change formally and informally with some ease.


Leslie Lim said...

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