Section 3: Informal changes to the Constitution

Chapter 3 – “The Constitution”

Quick review…2 methods of proposal:

2/3 of both bodies of Congress2/3 of a National Convention

2 methods of ratification: ¾ of state legislatures¾ of state ratifying conventions

The Formal Amendment Process

“Informal Amendment” Process

Broad language provides us with a “skeleton” of a government…

Phrase is a misnomer – Why?

1. Political parties

2. * The judiciary

3. * Congress and legislation

4. Executive action

5. Customs and precedents

Political Parties1796, George

Washington: “the baneful effects of the spirit of the party.”

Electoral College, Congress, political conventions, appointments and nominations…

QUESTION – The United States government, Government through the people or Government through the party???

The JudiciaryLandmark court

cases…

The Judiciary is the ultimate authority of how the Constitution is interpreted!

* Marbury v. Madison, 1803judicial review…

“A constitutional convention in continuous session.” – Woodrow Wilson

EXAMPLES: Griswold v. Connecticut – contraception Loving v. Virginia – interracial marriage Roe v. Wade – abortion

Judicial changes in the interpretation of the Constitution = nation's outlook changes as well!

The Judiciary

Congress and the purpose of passing laws…Adding “flesh to the bones”Interpretation of constitutional provisions

“Elastic clause”/“Necessary and Proper clause”

EXAMPLE: Powers of the Congress and the Necessary and

Proper clause… Commerce clause? – “interstate commerce”

Legislation and Congress

Legislation and CongressJudiciary Act of 1789…

* Article III, Section 1: “…such inferior courts as Congress saw fit to establish.”

QUESTION – What has the Congress been left to decide?

Executive ActionPresidents have used

their powers to define unclear constitutional provisions…

EXAMPLE:Congress's power to

declare war and the President's power to wage war…

What is the dilemma?

Presidents have extended their authority over foreign policy and avoided the constitutional requirement for the Senate to approve formal treaties…

Executive agreements are pacts made by a President with heads of a foreign government…

FDR and executive agreements, post WWII

Treaties: formal agreement between two or more sovereign states… (AII, S2)

Examples?

Executive Action

Customs and PrecedentsEach branch of

government has developed traditions that fall outside the provisions of the Constitution…

GW, FDR and the “two term” tradition…

Which amendment???

EXAMPLES: President's cabinetSenatorial Courtesy (Federal district court judges,

U.S. attorneys, and federal marshals.)

QUESTION– Why is this important and what does it do?

Customs and Precedents

Quick Review: *** In most of these cases, the Constitution was not

actually changed…

*** These changes in meaning are significant because they can happen by a simple judge's ruling; and they are not a part of the Constitution, so they can be changed again later.