The Constitution was written as a skeleton design by the Framers so that generations later were able to make provisions as circumstances required. There is much to the Constitution that cannot be seen with the naked eye that had been put there not by formal amendment, but by informal amendment. Over time, many changes have been made in the Constitution which have not involved any changes in its written words. This occurs in five basic ways: through (1) the passage of basic legislation by Congress, (2) actions taken by the President, (3) key decisions of the Supreme Court, (4) the activities of political parties, and (5) custom.
Basic Legislation:
Congress has been a major agent of constitutional changes by passing a number of laws to spell out several of the Constitution’s brief provisions. Congress has added flesh to the bones of the Constitution that the Framers left purposely for provisions.
An example is the structure of the federal court system. In Article III, Section 1, the Constitution provides for “one supreme Court, and … such inferior Courts as the Congress may … ordain and establish.” Since the Judiciary Act of 1789, all of the federal courts, except the Supreme Court, have been set up by Congress.
Congress has also added to the Constitution by the way it has used its powers. The Constitution gives Congress the expressed power to regulate foreign and interstate commerce (Article I, Section 8, Clause 3). Congress has exercised its commerce power with the passage of thousands of laws.
Executive Action:
The way that some of the Presidents have used their powers has also contributed to the growth of the Constitution. For example, the Constitution states that only Congress can declare war, and the President is the commander in chief of the nation’s armed forces. In some cases, Presidents have used the armed forces in battle without a declaration of war.
Another example is the use of executive agreement. An executive agreement is a pact made by the President directly with the head of a foreign state. The President may choose to use a treaty as a form of agreement that also does not need to be approved by the Senate.
Court Decisions:
The United States Supreme Court interprets and applies the Constitution in many cases they hear. In the Marbury v. Madison, 1803, constitutional interpretation—that is, constitutional amplification—was shown in the dealings of that particular case. To the Supreme Court, regarding these landmark cases, as Woodrow Wilson once said, “a constitutional convention in continuous session.”
Party Practices:
The nation’s political parties have also been a major source of constitutional change despite the fact that the Constitution does not mention political parties. In fact, most of the Framers of the Constitution were opposed to political parties. George Washington even warned the people against “the baneful effects of the sprit of party.” Political parties have played a major role in the shaping of government and its processes.
There is neither law nor part of the Constitution that provides for the nomination of candidates for presidency. Since the 1830s, major parties have held national conventions to do just that. The parties have converted the electoral college into a “rubber stamp” for each State’s vote. In short, government in the United States is in many ways government through party.
Custom:
Unwritten customs may be just as powerful as written law and many customs. By custom, not because the Constitution says so, the heads of the 15 executive departments make up the Cabinet.
It is a long-established custom that the Senate will approve only those presidential appointees who are acceptable to the senator or senators of the President's party from the State involved. For example, a federal judge or a U.S. marshal. This practice is known as senatorial courtesy.
Both the strength and the importance of unwritten customs can be seen in the reaction to the rare circumstances in which one of them has not been observed. For nearly 150 years, the “no-third-term tradition” was a closely followed rule in presidential politics. What had been an unwritten custom, an informal rule, became part of the written Constitution itself.
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