The Power of Informal Methods of Constitutional Change: A Closer Look

The Power of Informal Methods of Constitutional Change: A Closer Look

Constitutions are often considered as formal documents that dictate the structure and functioning of a state. They are written by constitutional experts and ratified by specialized institutions to ensure that they reflect the values and principles of a nation. However, the process of constitutional change does not always rely on formal methods, as informal methods can play a crucial role in updating constitutions and enhancing their relevance.

The Significance of Informal Methods of Constitutional Change

Informal methods of constitutional change refer to the ways in which amendments, modifications, and reinterpretations are made that do not necessarily follow the formal process specified by the constitution. These methods include judicial interpretation, legislative action, public referendum, and even popular protests. While some may view these methods as illegitimate, they have played a significant role in correcting deficiencies in formal constitutions.

Judicial Interpretation

One of the most widely used forms of informal methods of constitutional change is judicial interpretation. Courts around the world have often expanded the scope of constitutions to reflect changing societal values or to address pressing concerns. In this way, judicial interpretation serves as a feedback mechanism that ensures that the constitution remains relevant to the needs of the people. The US Supreme Court’s decision in Brown v Board of Education is a striking example of this. In that case, the Supreme Court held that racial segregation in public schools was unconstitutional, thus sparking a social movement that eventually led to the end of segregation.

Legislative Action

Another form of informal constitutional change is legislative action. Legislators often pass laws that have the effect of amending or modifying the constitution without formally using the amendment procedures set out in the constitution. In some cases, this is done to address immediate concerns that cannot wait for formal amendments to be passed. For example, after the 9/11 attacks, the US Congress passed the USA Patriot Act, which amended several provisions of the US Constitution to enhance the government’s ability to fight terrorism.

Public Referendum

Public referendum is another method of informal constitutional change. In this method, citizens are given the opportunity to vote on constitutional amendments, thus bypassing the formal amendment procedure. This method has been used with great success in many countries, including Ireland, Switzerland, and New Zealand. In 2015, Ireland became the first country in the world to legalize same-sex marriage through a public referendum.

Popular Protests

Finally, popular protests can also be an effective means of effecting constitutional change. This form of constitutional change is more direct than other forms since it involves the direct participation of the people. Protests can lead to the overthrow of entire regimes, as seen in the Arab Spring. They can also force constitutional changes, as seen in the civil rights movement in the US.

Conclusion

In conclusion, while formal methods of constitutional change still remain essential, informal methods, such as judicial interpretation, legislative action, public referendum, and popular protests, can play a crucial role in ensuring the constitution remains relevant to changing societal values and needs. Nonetheless, it is essential to ensure that these informal methods do not lead to the erosion of the rule of law or undermine the legitimacy of formal constitutional procedures.