Have a Conversation About the Law Day Theme Changing the Constitution – Formally and Informally
As the Law Day 2022 theme notes, defining and refining the words of the Constitution might be our oldest national tradition. Throughout our nation’s history, we have changed the Constitution through many different avenues and for a plethora of reasons and causes. And although most of most of us are familiar with the formal way to change the Constitution, through the amendment process, it is by far not the only means to make refine the blueprint of our government.
Formal Changes
The most obvious way that the Constitution is changed is through the formal amendment process. To amend the Constitution certain protocols must be followed as set forth in Article V of the U.S. Constitution. There are currently 27 formal amendments to the Constitution (although the 21st Amendment repealed the 18th Amendment so there are currently 26 amendments in place).
According to Article V, there are two general steps that a proposed amendment must follow in order to be considered ratified. First, the proposed amendment must be approved by either 2/3 of both houses of Congress or state legislatures. Then, it must be approved by 3/4 of all the states, either by a vote of the state’s legislatures or a state level convention.
Formal amendments have originated from a variety of avenues during our nation’s history. For example, the 19th Amendment (removing sex as a barrier to voting) and the 26th Amendment (lowering the voting age to 18) all came about after wide-spread social movements and advocacy. On the other hand, amendments like the 13th (ending slavery) and the 22nd (creating term limits on the presidency) were initiated by Congress in response to an issue impacting the country. Finally, some amendments, such as the 11th (prohibiting lawsuits against states) and the 24th (banning poll taxes) came as a direct response to Supreme Court decisions.
Informal Changes
Many changes to our constitutional system have come to exist even without formal amendments. As former Yale Law Dean Heather Gerken has said “Anyone who was awake in law school is aware that constitutional meaning has evolved over time even as the text has not[TM1] .” One frequent informal change to the Constitution comes from sweeping federal legislation, as exemplified by the Civil Rights Act of 1964. The process for enacting federal legislation is obviously different than that to enact a formal amendment to the U.S. Constitution, and is by many measures, less difficult. Generally, both houses of Congress need to pass a federal law and then the President must sign the law (or two-thirds of Congress can pass it over the President’s veto). Federal legislation covers a wide variety of topics including immigration, bankruptcy, copyright and civil rights, just to name a few.
Although a number of formal amendments to the Constitution have come in response to Supreme Court cases, the reverse is also true: Supreme Court cases have frequently had the same effect as formal amendments without the formality. Woodrow Wilson is attributed to having said that the Supreme Court is “a constitutional convention in continuous session.” Supreme Court decisions, and in some instances, the Court itself, have frequently had the same impact as constitutional amendments.
The Supreme Court and constitutional amendments have a close and interlocking relationship; the Court’s judgement can (and has been) overruled by amendments, but the amendment process is so cumbersome, it rarely occurs. Consequently, the Court’s decisions are often the last word in defining and applying our constitutional rights and norms (rights-based issues), and in the establishing, and ensuring, the structure of our system of government (structure-based issues).
Of course, courts cannot simply go out looking for cases to rule on. A party with an active dispute must bring the case to court. Different courts have different specific jurisdictional rules, but in general, courts have firm rules and guidance on the types of cases they can hear.
Finally, interstate compacts serve as another great example of informal amendment to the Constitution. Such compacts are formal agreements between two or more states, affecting the rights and responsibilities of those states and their citizens. State compacts can be a useful tool for policy initiatives that will have difficulty getting over the high barriers for a constitutional amendment. To become effective, state compacts must be approved the states’ legislatures, and depending on the subject matter, by the U.S. Congress. Once in effect, compacts are contractual obligations for the states that are a party to them. In fact, contracts are often drafted using similar language and clauses as contracts, including detailing compliance and enforcement measures, withdrawal and termination terms, and administration and dispute resolution means. Some compacts require the creation of independent interstate agencies to help fulfill the compact’s purposes.
Common topics for interstate compacts include water rights, fishery regulations, bridge and tunnel development and maintenance, and mining regulations. The Multistate Tax Compact is a well-known example of a long-lasting compact, it became effective in 1967. The Compact created a Commission that facilitates proper tax collection and apportionment for multistate taxpayers. The Compact and Commission help ensure uniformity in state tax laws and avoid duplicate taxation. Fifteen states and the District of Columbia are members to the Compact. Another well-known example of an interstate compact commission is the Port Authority of New York and New Jersey.
Catherine Hawke is the Deputy Director of the American Bar Association’s Division for Public Education and the editor of the ABA’s Preview of United States Supreme Court Cases. She has a B.A. from the University of Michigan and a J.D. from the Loyola University Chicago School of Law.