Informal
Amendment
The Constitution
• Very brief document
• Very vague and even skeletal in nature
• Describes basic organization and processes
• Informal Amendment
• Process by which over time, many changes have been made in
the Constitution which have not involved any changes in its
written words
• Real key to Constitutional change and development
Informal Amendments
• Occurred from experiences of government under the
constitution
• Continues to occur in 5 different ways
1.
2.
3.
4.
5.
Basic legislation from Congress
Actions taken by the President
Decisions of Supreme Court
Activities of political parties
Custom
Basic Legislation
• Congress passed laws to explain the Constitutions provisions
• Article 3 Section 1
• One Supreme Court and other inferior courts as Congress
determines necessary from time to time
• All federal courts have been established by Congress
• Article 2
• Creates only the office of President and VP
• All departments and agencies have been created by acts of Congress
• Congress has power to regulate foreign and interstate
commerce
• By passing laws it has defined its own role and changed the
constitution
Executive Action
• President is Commander and Chief
• Many Presidents have used the military to fight wars without a
declaration of war
• Executive Agreement
• Pact between President and head of a foreign state
• Treaty, is a formal agreement between two or more sovereign
states
• Executive agreements don’t need approval by Senate
• Still legally binding
Court Decisions
• US Supreme Court
• Interpret and apply the constitution in many cases
• Marbury vs. Madison
• Court decision claims the right of the Supreme Court to rule
something unconstitutional, also affirmed the authority of federal
power over States in the constitution
• Supreme Court is a constitutional convention in continuous
session
Party Practices
• No mention of parties in constitution
• Most founding fathers opposed political parties
• No law requires nomination of candidates for presidency
• Since 1830s political parties have done just that
• Congress organized and works by party
• Presidential appointments follow party lines
• Electoral College
• Essentially a stamp for each State’s popular vote for a candidate
Custom
• Cabinet
• The 15 heads of executive departments
• The cabinet is a custom itself, not in the constitution
• Presidential Succession
• Upon all 8 Presidents deaths in office VP steps in
• Not actually written in constitution until 1967 (25th Amendment)
• VP was to take the responsibilities, not the office itself
• Senatorial Courtesy
• Senate will not approve a presidential appointment opposed by a
majority party Senator from the State in which the appointee
would serve
• (Federal judge, US Marshall, etc)
Importance of Custom
• “No third term presidency”
• Custom established by George Washington
• Followed for 150 years
• FDR breaks tradition
• Gets elected to a third and fourth term
• 22nd Amendment
• Added in 1951 (shortly after FDR’s death)
• President may only serve two terms
• A custom became part of the actual constitution