Understanding Informal Changes to the US Constitution: Electoral College and Judicial Review

When discussing the U.S. Constitution, many individuals are under the impression that any changes must go through formal amendment processes. However, there are instances where the Constitution is effectively altered without following these traditional procedures. This article delves into two well-known informal changes: the Electoral College and judicial review. These examples serve as a reminder that the Constitution's spirit can evolve even in the absence of formal textual amendments.

The Electoral College: An Informal Pathway

The U.S. Constitution originally envisioned the Electoral College as a system where each state would appoint electors who would serve as free agents to choose the president and vice president. This concept was grounded in the framers' desire to balance state and federal interests. However, over time, the Electoral College has evolved into a system where electors are generally pledged to vote for their party's candidate, as determined by the popular vote within each state.

While the Constitution does not explicitly detail the Electoral College's operational changes, these modifications have been implemented through practical and political means. Here’s how it works:

Political parties within each state nominate slates of electors. Citizens vote for electors, who are usually bound to vote for their party's candidate. Even if electors vote for someone other than their party's nominee, such deviation is rare and typically non-binding.

This means that the Electoral College now functions more as a rubber-stamp, reflecting popular votes rather than acting as an independent body in the true spirit of the Constitution.

Judicial Review: A Constitutional Doctrine without Explicit Approval

The concept of judicial review, where the Supreme Court can declare laws or executive actions unconstitutional, is a prime example of an informal change to the U.S. Constitution. The Constitution does not grant the Supreme Court this power explicitly. However, the doctrine's origins trace back to Marbury v. Madison in 1803, where Chief Justice John Marshall articulated that the judiciary has the authority to interpret the Constitution and rule on the constitutionality of laws.

For over two centuries, no act of Congress or constitutional amendment has negated this power. The existence of judicial review is now a fundamental part of American jurisprudence, profoundly shaping the way the federal government operates. This informal change has effectively expanded the Constitution's reach beyond its explicit wording, reinforcing principles of checks and balances.

Are There Other Informal Changes to the Constitution?

The examples of the Electoral College and judicial review highlight that the U.S. Constitution can indeed adapt and evolve through informal means. While formal amendments provide the official pathway for change, many legal and social changes can be considered unofficial amendments, altering how the Constitution is interpreted and applied over time.

For instance, deference to precedent in Supreme Court decisions or judicial activism can further refine constitutional interpretation without directly amending the document. Similarly, party politics and electoral reforms can shape the practical functioning of the Electoral College, even if the underlying principles remain the same.

Formal Amending of the Constitution

Despite these informal changes, it is essential to understand that the Constitution’s superstructure remains firmly rooted in the text and amendment process. Any significant or fundamental changes must adhere to the two-thirds majority approval in both houses of Congress, followed by ratification by three-quarters of the state legislatures.

For a detailed look at this formal process, you can refer to the article by Robert Longley titled 'The Processes of Amending the US Constitution'.

Understanding both formal and informal changes to the Constitution is crucial for comprehending the dynamic and ever-evolving nature of this supreme legal document. The Constitution is a living document that continues to shape the United States, and its interpretation can be as significant as its literal amendment.