FRQ on the Constitution Question #1(2001)

The United States Constitution has endured for more than two centuries as the
framework of government. However, the meaning of the Constitution has been
changed both by formal and informal methods.

a. Identify two formal methods for adding amendments to the Constitution.

b. Describe two informal methods that have been used to change the
meaning of the Constitution. Provide one specific example for each
informal method you described.

c. Explain why informal methods are used more often than the formal amendment process

A1. One formal method for adding amendments to the Constitution is through the process by which amendment proposals if passed 2/3ds of both Houses of Congress, are then sent to the state legislatures. If 3/4s of these legislatures ratify the amendment proposal, then the amendment is added to the Constitution.

A2. Another formal method for adding amendments to the Constitution is completed through the states. In this scenario a statewide Constitutional Convention is called by Congress and held and if 2/3rds of state representatives approve the proposal, it is then sent off the state legislatures and will become ratified if ¾’s of these legislatures approve it. This method has never been used before.

B1. One informal method that has been used to change the meaning of the Constitution relates to the Elastic Clause and Congress-it essentially gives the legislative branch substantial power to make laws necessary and proper to carry out the functions of the federal government that may not be formally expressed in the Constitution. While a national bank was not mentioned in the Constitution, the Supreme Court decision, McCulloch v. Maryland allowed for a national banks’ authority over state banks-the State of Maryland could not tax a federal bank.

B2. Another informal method that has been used to change the meaning of the Constitution relates to the judicial process. Many constitutional questions have been the subject of court cases. Oftentimes, the 14th Amendment is involved in adjusting the Constitution. For example, in the case of Gideon v. Wainwright, the US Supreme Court held that an individual had the right to an attorney on the state level whereas originally the Constitution only allowed for federal representation.

C1. Informal methods for changing the Constitution are used far more often than the formal amendment process because they are much easier to affect. The 2/3rds proposal and ¾’s ratification process has produced only 27 amendments over the past 200 years. By contrast, legislative and judicial methods for “tweaking” the Constitution require far less time and far less need for consensus.