Among the methods of informal constitutional change, perhaps the least studied or understood is change resulting from alterations in the way governance is practiced. Such changes, typically initiated by political actors in the executive and legislative branches, is probably the most common kind of constitutional change, and is almost certainly the most common source of informal change to structural provisions. In the United States, the best known instances of practice-driven changes to constitutional structure come from the federal level – the rise of a formal party system, for example, or the dramatic twentieth-century expansion of presidential power. Yet by far the most copious and dramatic examples of such change in the United States are to be found at the subnational level, in changes wrought by practice to the structural provisions of state constitutions. New York’s system of legislation by “three men in a room,” for example, or its replacement of competitive judicial elections with a democratically meaningless system of party cross-endorsement deals, bear no resemblance to either the provisions of the written state constitution regulating practices of governance, or to the conceptions of governance on which those provisions were founded. The sheer range of practice-driven deviation from constitutional schema in turn raises important questions about the ability of constitutions to stabilize official behavior at structural design points.
Arkansas Law Review
James A. Gardner,
Practice-Driven Changes to Constitutional Structures of Governance,
Ark. L. Rev.
Available at: https://digitalcommons.law.buffalo.edu/journal_articles/211