Constitutional formalists posit that the Article V amendment process represents the only legitimate method of achieving constitutional change. This view is challenged by numerous widely-accepted judicial decisions that have introduced new meaning into constitutional language by departing from original intentions, expectations, or meaning. A similar, though less discussed, process occurs as, independent of judicial work, constitutional institutions evolve to take forms inconsistent with what the Founders imagined or the language they wrote suggested.
The history of the Vice Presidency offers an important example of how constitutional institutions do and should change, sometimes in ways quite different from what various theories of originalism would suggest. Although the Founders placed the Vice President primarily in the legislative branch and provided that he/she would be “President of the Senate,” the office has evolved to become a central part of the executive branch whose occupant almost never discharges the formal legislative role the Constitution assigns. Nor does the Vice President’s successor role account for his/her activities. Instead, the office has been transformed to function as an active part of the executive branch essentially through a common-law-like process. To the extent that Article V is associated with constitutional change regarding the vice-presidential duties, it has largely confirmed, rather than prescribed, the changes that had otherwise occurred. The reimagining of the Vice Presidency has occurred with broad support.
The experience of the Vice Presidency provides a counterexample to constitutional formalism generally and to originalism more specifically. Constitutional change through institutional evolution should become more relevant in thinking about constitutional amendment and originalism, especially as the proponents of originalism justify it increasingly not as a means of promoting judicial restraint, but rather as the appropriate way to interpret the Constitution. This change lends greater importance to studying examples of institutional behavior in considering the merits of originalism as a guiding theory of constitutional interpretation.
Constitutional Change, Originalism, and The Vice Presidency,
U. Pa. J. Const. L.
Available at: http://scholarship.law.upenn.edu/jcl/vol16/iss2/3