Government & Economics · 12th Grade · Foundations of American Democracy · Weeks 1-9

The Amendment Process: Formal & Informal

The formal and informal ways the Constitution changes over time to reflect a changing society.

• Common Core State Standards
• C3: D2.Civ.4.9-12
• C3: D2.Civ.12.9-12

About This Topic

The Constitution has been formally amended only 27 times in over 230 years , a remarkably low number for a living governing document. The formal amendment process requires a two-thirds vote in both chambers of Congress (or a national convention called by two-thirds of states) followed by ratification by three-fourths of state legislatures. This high bar was intentional: the Founders wanted constitutional change to reflect broad consensus rather than simple majorities, preventing the document from becoming unstable under shifting political winds.

But the Constitution also changes through informal mechanisms that do not require the formal process. Landmark Supreme Court decisions , from Marbury v. Madison establishing judicial review to Brown v. Board overturning Plessy , have reinterpreted existing text in ways that functionally alter what the Constitution means in practice. Presidential precedent, congressional norms, and executive orders have similarly filled in gaps and extended constitutional meaning beyond the document's literal text.

Active learning is especially appropriate for this topic because the amendment process is itself a kind of civic deliberation , it requires building coalitions, articulating arguments, and reaching supermajority consensus. Students who work through what it would take to pass an amendment today gain a concrete understanding of why the bar is high and what that means for the pace of constitutional change.

Key Questions

1. Is the 2/3 and 3/4 threshold for amendments too high for a modern society?
2. How has judicial interpretation acted as an 'informal' amendment process?
3. Which proposed but unratified amendment would have changed America the most?

Learning Objectives

• Analyze the historical context and rationale behind the formal amendment process outlined in Article V of the Constitution.
• Compare and contrast the effectiveness of formal amendments versus informal changes (judicial review, congressional action, custom) in adapting the Constitution to societal shifts.
• Evaluate the arguments for and against the current amendment thresholds (2/3 Congress, 3/4 states) in the context of contemporary American politics.
• Synthesize information to propose a hypothetical informal amendment through a Supreme Court case or congressional action addressing a modern issue.

Before You Start

Principles of American Democracy

Why: Students need a foundational understanding of core democratic principles like separation of powers and checks and balances to grasp how amendments address or alter these structures.

The U.S. Supreme Court and Judicial Review

Why: Understanding the role and power of the Supreme Court is essential for comprehending how judicial interpretation leads to informal amendments.

The Structure of the U.S. Government

Why: Knowledge of the legislative and executive branches is necessary to understand their roles in the formal amendment process and the impact of informal changes.

Key Vocabulary

Formal Amendment	The official process for changing the U.S. Constitution, involving proposal by Congress or convention and ratification by state legislatures or conventions.
Informal Amendment	Changes to the Constitution's meaning or application that do not involve altering the written text, often through judicial interpretation, congressional legislation, or custom.
Judicial Review	The power of courts to review laws and actions of the legislative and executive branches to determine their constitutionality, established in Marbury v. Madison.
Supremacy Clause	Article VI of the Constitution, which establishes that federal laws and the Constitution are the supreme law of the land, overriding state laws when in conflict.
Ratification	The formal approval of a proposed amendment by three-fourths of the state legislatures or by conventions in three-fourths of the states.

Watch Out for These Misconceptions

Common Misconception

If something is wrong with the Constitution, the formal amendment process is the only way to fix it.

What to Teach Instead

Judicial reinterpretation, congressional legislation, and executive practice all change how the Constitution operates in practice. The 14th Amendment was interpreted for decades to permit racial segregation under the 'separate but equal' doctrine until Brown v. Board reversed that interpretation without any formal amendment. Students should understand that constitutional meaning evolves through multiple pathways, not just the formal Article V process.

Common Misconception

The Founding generation expected and intended the Constitution to be amended frequently.

What to Teach Instead

Jefferson believed constitutions should be rewritten every 20 years, but the Convention deliberately chose a high-bar amendment process. Madison argued in Federalist No. 49 that frequent revision would undermine the stability and public attachment that gave the Constitution its authority. The rarity of amendments reflects the design's intent, not a malfunction of the system.

Common Misconception

All 27 amendments improved the Constitution and solved the problems they were meant to address.

What to Teach Instead

Some amendments were clearly corrective (the 13th abolished slavery; the 17th moved to direct Senate elections), while others are widely considered mistakes (the 18th establishing Prohibition, repealed by the 21st). This variation gives students productive material for evaluating which amendments succeeded in their purposes and which created new problems that required additional correction.

Active Learning Ideas

Simulation Game: Amending the Constitution

Assign students to propose and advocate for a constitutional amendment on a real contemporary issue (campaign finance, voting rights, term limits). They must build support to reach a two-thirds threshold in a simulated Congress and then three-fourths ratification among state delegations, experiencing firsthand how coalition-building requirements shape which amendments are actually possible.

55 min·Small Groups

Case Study Analysis: Informal Amendment Through Court Decisions

Provide three landmark Supreme Court cases (Marbury v. Madison, McCulloch v. Maryland, Obergefell v. Hodges). For each, students identify what the Constitution said, what the Court decided, and how the decision functionally changed the Constitution without a formal amendment, then assess whether this informal pathway is legitimate or problematic.

35 min·Pairs

Formal Debate: Is the Amendment Threshold Too High?

One side argues the supermajority requirement protects constitutional stability and prevents temporary majorities from rewriting fundamental law. The other argues that it prevents necessary updates and gives small minorities veto power over widely supported changes. Both sides must address at least one specific proposed amendment that failed despite broad public support.

45 min·Small Groups

Think-Pair-Share: The Failed Amendments

Students research three amendments that passed Congress but were never ratified (the Equal Rights Amendment, the Corwin Amendment, the Child Labor Amendment). Pairs identify why each failed, what that reveals about the ratification threshold, and whether any of them should be revived , then share their analysis with the class.

30 min·Pairs

Real-World Connections

• Attorneys at the Department of Justice's Office of Legal Counsel analyze existing statutes and constitutional precedents to advise the President on the legality of executive orders, which can function as informal amendments.
• Lobbyists for organizations like the National Rifle Association or the Sierra Club actively campaign for or against proposed constitutional amendments, demonstrating the political challenges of the formal process.
• Supreme Court clerks meticulously research historical cases and legal arguments when preparing briefs for justices who will interpret constitutional clauses, influencing the Constitution's practical meaning through judicial review.

Assessment Ideas

Discussion Prompt

Pose the question: 'If you were a Supreme Court Justice in 1954, how would you have argued for or against overturning Plessy v. Ferguson based on the Equal Protection Clause?' Students should cite specific constitutional principles or precedents in their responses.

Quick Check

Provide students with a list of 5-7 significant Supreme Court cases (e.g., Marbury v. Madison, Miranda v. Arizona, Roe v. Wade). Ask them to identify which cases represent informal amendments and briefly explain how each case altered constitutional interpretation without changing the text.

Exit Ticket

Ask students to write one sentence explaining the primary difference between formal and informal amendments. Then, have them name one specific historical event or societal change that they believe necessitated an amendment (formal or informal) and briefly explain why.

Frequently Asked Questions

Why is the US Constitution so hard to amend compared to other countries?

The US supermajority thresholds , two-thirds of Congress plus three-fourths of states , are among the highest formal amendment bars in the world. Many democracies amend their constitutions more regularly through simpler procedures. The US design reflects a preference for stability and resistance to temporary majorities. Critics argue this makes the system unresponsive to broad social change that falls short of extraordinary consensus.

What is judicial review and how does it function as an informal amendment?

Judicial review is the power of courts to invalidate laws that conflict with the Constitution. Because courts can reinterpret what constitutional language means , expanding or contracting the scope of rights and powers , their decisions function like amendments without requiring the formal process. The evolution of the commerce clause, the 14th Amendment's equal protection clause, and First Amendment coverage of digital speech are all examples of this informal pathway.

Which constitutional amendment has had the biggest impact on American history?

A strong case can be made for the 13th (abolishing slavery), the 14th (equal protection and due process, applying the Bill of Rights to states), and the 19th (women's suffrage). The 14th in particular has been the basis for the vast majority of Supreme Court civil rights decisions in the 20th and 21st centuries, making it the most legally consequential amendment in terms of subsequent judicial application and constitutional development.

How does an active learning approach help students understand the amendment process?

The amendment process is procedurally complex and easy to memorize without really understanding. Simulations where students actually attempt to pass and ratify an amendment , experiencing the coalition-building, negotiation, and consensus requirements , make the threshold meaningful rather than arbitrary. When students see their own proposed amendment fail to reach two-thirds agreement among classmates, the design logic becomes visceral rather than academic.