Since its final ratification in 1788, the U.S. Constitution has been changed countless times by means other than the traditional and lengthy amendment process spelled out in Article V of the Constitution itself. In fact, there are five totally legal “other” ways the Constitution can be changed.
Universally acclaimed for how much it accomplishes in so few words, the U.S. Constitution is also often criticized as being too brief—even “skeletal”—in nature. In fact, the Constitution’s framers knew the document could not and should not try to address every situation that the future might hold. Clearly, they wanted to ensure that the document allowed for flexibility in both its interpretation and future application. As a result, many changes have been made to the Constitution over the years without changing a word in it.
Among the more than 11,000 proposed amendments formally introduced in Congress that have not become part of the Constitution are an amendment to permit students to pray in school; an amendment to guarantee women equal rights; an amendment to prohibit abortion; an amendment to define marriage; and an amendment to make the District of Columbia a state. Since the ratification of the Bill of Rights—the first ten amendments to the Constitution—in 1791, Congress has passed an additional twenty-three amendments, of which the states have ratified only seventeen. Such statistics indicate the magnitude of difficulty in amending the U.S. Constitution via the traditional methods.
The few amendments that have been adopted through the traditional method have come about because of a widely recognized problem or a sustained campaign for reform. For example, after the Nineteenth Amendment gave women the right to vote in 1920, Carrie Chapman Catt, one of the leaders of the woman suffrage movement, reflected that “To get the word ‘male’ in effect out of the Constitution cost the women of the country fifty-two years of pauseless campaign.”
Given the difficulty of amending the Constitution, therefore, it is not surprising that change has more often occurred through ways other than the formal amendment process.
The important process of changing the Constitution by means other than the formal amendment process has historically taken place and will continue to take place in five basic ways:
- Legislation enacted by Congress
- Actions of the President of the United States
- Decisions of the federal courts
- Activities of the political parties
- The application of custom
The framers clearly intended that Congress—through the legislative process—add meat to the skeletal bones of the Constitution as required by the many unforeseen future events they knew were to come.
While Article I, Section 8 of the Constitution grants Congress 27 specific powers under which it is authorized to pass laws, Congress has and will continue to exercise its “implied powers” granted to it by Article I, Section 8, Clause 18 of the Constitution to pass laws it considers “necessary and proper” to best serve the people.
Consider, for example, how Congress has fleshed out the entire lower federal court system from the skeletal framework created by the Constitution. In Article III, Section 1, the Constitution provides only for “one Supreme Court and … such inferior courts as the Congress may from time to time ordain or establish.” The “from time to time” began less than a year after ratification when Congress passed the Judiciary Act of 1789 establishing the structure and jurisdiction of the federal court system and creating the position of attorney general. All other federal courts, including courts of appeals and bankruptcy courts, have been created by subsequent acts of Congress.
Similarly, the only top-level government offices created by Article II of the Constitution are the offices of the President and Vice President of the United States. All of the rest of the many other departments, agencies, and offices of the now-massive executive branch of government have been created by acts of Congress, rather than by amending the Constitution.
Congress itself has expanded the Constitution in the ways it has used the “enumerated” powers granted to it in Article I, Section 8. For example, Article I, Section 8, Clause 3 grants Congress the power to regulate commerce between the states—“interstate commerce.” But what exactly is interstate commerce and what exactly does this clause give Congress the power to regulate? Over the years, Congress has passed hundreds of seemingly unrelated laws citing its power to regulate interstate commerce. For example, since 1927, Congress has virtually amended the Second Amendment by passing gun control laws based on its power to regulate interstate commerce.
Over the years, the actions of various presidents of the United States have essentially modified the Constitution. For example, while the Constitution specifically gives Congress the power to declare war, it also deems the president to be the “Commander in Chief” of all U.S. armed forces. Acting under that title, several presidents have sent American troops into combat without an official declaration of war enacted by Congress. While flexing the commander in chief title in this way is often controversial, presidents have used it to send U.S. troops into combat on hundreds of occasions. In such cases, Congress will sometimes pass declarations of war resolution as a show of support for the president’s action and the troops who have already been deployed to battle.
Similarly, while Article II, Section 2 of the Constitution gives presidents the power—with a supermajority approval of the Senate—to negotiate and execute treaties with other countries, the treaty-making process is lengthy and the consent of the Senate always in doubt. As a result, presidents often unilaterally negotiate “executive agreements” with foreign governments accomplishing many of the same things accomplished by treaties. Under international law, executive agreements are just as legally binding on all of the nations involved.
Decisions of the Federal Courts
In deciding many cases that come before them, the federal courts, most notably the Supreme Court, are required to interpret and apply the Constitution. The purest example of this may be in the 1803 Supreme Court case of Marbury v. Madison. In this early landmark case, the Supreme Court first established the principle that the federal courts could declare an act of Congress null and void if it finds that law to be inconsistent with the Constitution.
In hishistoric majority opinion in Marbury v. Madison, Chief Justice John Marshall wrote, “… it is emphatically the province and duty of the judicial department to say what the law is.” Ever since Marbury v. Madison, the Supreme Court has stood as the final decider of the constitutionality of laws passed by Congress.
In fact, President Woodrow Wilson once called the Supreme Court a “constitutional convention in continuous session.”
Despite the fact that the Constitution makes no mention of political parties, they have clearly forced constitutional changes over the years. For example, neither the Constitution nor federal law provides for a method of nominating presidential candidates. The entire primary and convention process of nomination has been created and often amended by the leaders of the major political parties.
While not required by or even suggested in the Constitution, both chambers of Congress are organized and conduct the legislative process based on party representation and majority power. In addition, presidents often fill high-level appointed government positions based on political party affiliation.
The framers of the Constitution intended the electoral college system of actually electing the president and vice president to be little more than a procedural “rubber stamp” for certifying the results of each state’s popular vote in presidential elections. However, by creating state-specific rules for selecting their electoral college electors and dictating how they might vote, the political parties have at least modified the electoral college system over the years.
History is full of examples of how custom and tradition have expanded the Constitution. For example, the existence, form, and purpose of the vitally important president’s cabinet itself is a product of custom rather than the Constitution.
On all eight occasions when a president has died in office, the vice president has followed the path of presidential succession to be sworn into the office. The most recent example happened in 1963when Vice President Lyndon Johnson replaced the recently assassinated President John F. Kennedy. However, until the ratification of the 25th Amendment in 1967—four years later—the Constitution provided that only the duties, rather than the actual title as president, should be transferred to the vice president.