How could a 208 year-old document, written for a small agricultural nation of thirteen states endure through the tests of time to apply to today's immense, modern highly industrialized society? This is because of the flexibility with which the Constitution was imbued. The framers knew that they could not possibly plan for every circumstance or situation. As such, they provided various methods by which the Constitution and its laws could be modified as society grew and changed. That is why the United States Constitution is known as a "living constitution," one which can adapt and be flexible as necessary. There are three ways in which the Constitution is a "living" document: the formal amendment process; the informal amendment process; and custom, usage, and tradition. The formal amendment process is how amendments are added to the Constitution. Article V details the two methods to propose an amendment and the two methods to ratify an amendment. This part of the living constitution has been a useful tool by which Congress may enact an amendment. It keeps them honest in that the states must approve of any amendments by a three-fourths vote. Though this is one way in which the Constitution is constantly growing, it has not played a major part in helping to keep the Constitution current.
Informal amendments include all of the following: basic legislation passed by Congress, executive agreements, and court decisions. Congress has the power to pass whatever legislation it can within its restraints. This includes any and all acts such as the Judiciary Act of 1789 and the Civil Rights Act of 1964. The President can use executive agreements in dealing with foreign affairs and powers. An executive agreement is a contract made by the President with the head of a foreign state. They are not subject to Congress' approval. Throughout the nation's history, court decisions have had a great influence over the emergence of new laws, practices, or interpretations. They have changed the course of key issues and have existed as an important check on the legislative branch by the judicial branch. Informal amendments have played decisive roles in the evolution of the government, even directing which path shall be followed into the awaiting future.
The terms custom, usage, and tradition refer to the ways in which the various parts of the government react to new circumstances. The past customs of previous administrations have limited today's administrations. For example, delivering the State of the Union Address every year at approximately the same time as a televised event is derived from custom. Article II, Section 3 merely states that: "he shall from time to time give to the Congress Information of the State of the Union." Nowhere is it mentioned that he must do this at a certain time and in front of lots of cameras. This is a custom. Usage of certain pieces of legislation has also changed the Constitution. For example, the War Powers Resolution of 1973 has never truly been enforced. Parts of it have been used before but no President has ever been strictly held to the resolutions provisions. Tradition is another tool for expanding the Constitution. For example, there is the one involving the relationship between the President and the Senate. When George Washington became President, at first, he asked the Senate for advice in the preparation of some treaties. The Senate basically laughed in his face and no President has ever since asked the Senate for advice with regards to treaties.
© Copyright 1997 Jonathan Chin & Alan Stern