What Is the Difference Between a Formal & Informal Amendment to the Constitution?

What really makes the Constitution a living document aren't just the 27 written amendments but also the countless ways the Constitution has been interpreted and implemented by Congress, the president and the judicial system throughout our history. The result of these informal methods are just as far-reaching and effect our lives as much as formal changes.

Amending the Constitution requires two formal steps. It begins by proposing an amendment, which can be done by either both chambers of Congress, passing it by a two-thirds vote or by two-thirds of the states requesting a convention be held to consider amendments. If either occurs, the proposed amendment must then be ratified by either three-fourths of the state legislatures or three-fourths of the state conventions. The state convention methods have never been used as of publication.

Because this formal process is so difficult to complete, the amendments it produces have historic impact. The first 10 amendments are called the Bill of Rights and establish freedom of the press, the right to keep and bear arms, trial by jury and outlaws cruel and unusual punishment. The remaining 17 amendments cover such things as abolishing slavery, the right of women to vote and the right of all citizens to vote once reaching the age of 18.

The informal process, used by all branches of government, doesn't actually amend the Constitution. Instead, it refers to changes in how we interpret and use it. This can happen when Congress passes or revises legislation, when the president expands or revises the role of that office through executive actions, and when the courts interpret the meaning and intent of what is contained in the Constitution. Long held customs can also be considered informal changes or amendments.

The establishment of various appellate courts and speed limits on interstate highways are two examples of informal changes made by Congress. Executive privilege, which allows the president to keep conversations with aides and advisers secret, is another example of informally amending the Constitution. The practice of law enforcement telling people they have the right to remain silent is the result of informal changes made by the Supreme Court. Limiting a president to two terms in office started as an informal amendment that became a formal one, the 22nd Amendment.