Constitution Evolves Beyond Formal Amendments Through Practice

The Constitution's Unwritten Rules: Why Formal Amendments Aren't the Whole Story

This conversation with historian Jill Lepore reveals a profound, often overlooked truth about the U.S. Constitution: its true evolution is far more dynamic and complex than the formal amendment process suggests. While Article V outlines a rigorous path for change, the Constitution has been continuously reshaped through informal practices, judicial interpretation, and the very act of its ongoing application. This hidden layer of constitutional change offers a critical advantage to those who understand its mechanics, moving beyond the simplistic view of a static document to grasp its living, breathing nature. Anyone seeking to understand the true forces shaping American law and governance--from legal scholars to engaged citizens--will gain a deeper, more nuanced perspective by recognizing these non-obvious implications.

The Ghost in the Machine: Unpacking the Constitution's Evolving Meaning

The U.S. Constitution, often perceived as a fixed and immutable text, is in reality a document constantly in flux. While Article V meticulously details the process for formal amendments, this path has become increasingly arduous, bordering on impossible, particularly since the 1970s. This difficulty, however, has not halted the Constitution's evolution; it has merely shifted the locus of change to less visible, yet equally powerful, mechanisms. Jill Lepore, in her extensive work, highlights how "informal amendment" and "de facto amendments"--changes wrought by habit, practice, and judicial decisions--have become the primary engines of constitutional adaptation. This creates a subtle but significant divergence between the Constitution as written and the Constitution as lived, a gap that conventional wisdom often fails to bridge.

The framers themselves, acutely aware of the limitations of any fixed law in a changing society, designed Article V with the explicit intention of preventing the kind of revolutionary upheaval that had plagued earlier political systems. They saw amendment not just as a necessity, but as a desirable feature, a peaceful mechanism for societal progress.

"The idea that the people should be making things better when it was, should be changing things peacefully when it's necessary to change things."

However, the very structure of Article V, with its "double supermajority" requirement, proved far more challenging than anticipated. The initial success in ratifying the Bill of Rights, a direct response to state ratification demands, masked the growing difficulty of future amendments. By the 1830s, differing interpretations of the Constitution, particularly concerning states' rights and slavery, had already rendered the formal amendment process practically inert on the most contentious issues. The Civil War and Reconstruction, while leading to significant amendments (13th, 14th, 15th), did so under duress, a "second founding" born of bloodshed and military occupation, not the deliberative process envisioned by Article V.

The rise of originalism as a dominant judicial philosophy in the late 20th century further solidified the Constitution's perceived immutability. As Lepore notes, originalism, in its modern form, claims to eschew judicial activism by returning to the "original intention" of the framers.

"The premise is, you know, we're not doing very much, although it can be quite radical. You know, I, you know, one of the, you've talked about Dobbs, but just to be clear, originalism is everywhere."

This approach, however, often relies on a selective and constrained reading of history, akin to a historian refusing to consult all available sources. The consequence is a jurisprudence that often struggles to apply 18th-century principles to 21st-century realities, creating a disconnect that fuels the need for alternative modes of adaptation. The failure of efforts like the Equal Rights Amendment, and the ongoing debates around issues like the Electoral College, underscore the systemic challenges of formal amendment. The political machinations surrounding Senator Birch Bayh's attempts to abolish the Electoral College, ultimately thwarted by partisan retribution, vividly illustrate how immediate political expediency can derail even widely supported constitutional reforms.

This dynamic creates a fascinating paradox: a document designed to be amendable has become functionally unamendable through its prescribed channels. Yet, the Constitution’s meaning continues to shift, driven by judicial interpretation, evolving societal norms, and the persistent human impulse to adapt fundamental law to contemporary needs. Understanding this "philosophy of amendment" as a broader concept--one that encompasses not just formal changes but also the continuous reinterpretation and application of the Constitution--is key to grasping its enduring, albeit often contested, relevance. The true advantage lies in recognizing that the Constitution is not a static artifact, but a dynamic system of governance whose evolution is as much about what happens outside the formal amendment process as within it.

Key Quotes

"The idea that the people should be making things better when it was, should be changing things peacefully when it's necessary to change things."

-- Jill Lepore

"The premise is, you know, we're not doing very much, although it can be quite radical. You know, I, you know, one of the, you've talked about Dobbs, but just to be clear, originalism is everywhere."

-- Jill Lepore

"The history doesn't matter. If we were to constantly defer to the, the history and tradition of this country, we, we as a court could only ever reinstate racial divisions. We could never free the people from them."

-- Chief Justice Earl Warren (as recounted by Jill Lepore)

Key Action Items

• Immediate Action (Within 3 Months):

  • Seek out and read Jill Lepore's book, We the People: A History of the US Constitution, to gain a deeper understanding of the historical context and nuances of constitutional amendment.
  • Identify and research one "informal amendment" or significant judicial interpretation of the Constitution that has altered its practical application.
  • Engage in discussions with peers or in online forums about the challenges and implications of the formal amendment process in contemporary American politics.

• Medium-Term Investment (6-12 Months):

  • Explore the concept of "de facto amendments" by examining landmark Supreme Court cases and their impact on constitutional understanding, distinguishing them from formal amendments.
  • Research the historical arguments for and against specific failed amendment proposals to understand the political and societal forces that prevented their ratification.
  • Consider how current political debates reflect the tension between a desire for constitutional stability and the need for adaptation, noting instances where informal changes are occurring.

• Longer-Term Strategic Play (12-18 Months):

  • Develop a framework for analyzing constitutional change that accounts for both formal amendments and informal adaptations, recognizing the latter as often more impactful in practice.
  • Track and analyze ongoing legal and political movements that advocate for constitutional reform, assessing their potential to influence either formal or informal amendment pathways.
  • Cultivate a critical perspective on originalist jurisprudence, understanding its historical roots and its implications for interpreting a living document in a changing society.