Eleanor Finch
The concept of an unwritten constitution is often associated with the idea that a nation's legal choices, fundamental laws, and norms are not systematically written down or combined into a single document. Instead, they take the form of customs, usage, precedent, and a variety of statutes and legal instruments. While the written constitution provides a framework, the unwritten elements are deeply embedded in the governance fabric, acting as a moderating force and providing flexibility. The unwritten constitution relies on collective memory and shared understanding, and its interpretation can evolve over time due to changing societal needs, shifts in political power, and interpretations of higher authorities. The Magna Carta, signed in 1215, is considered the world's oldest unwritten constitution, while the United States Constitution, finalised in 1789, is the oldest written constitution.
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What You'll Learn
The two-term limit for presidents
Roosevelt's decision to seek a third term dominated his election campaign, with his opponent, Republican Wendell Willkie, running against the open-ended presidential tenure. Roosevelt's health was deteriorating during his fourth term, and he died just 82 days after his fourth inauguration. This, along with the fact that Roosevelt had been president for over a decade, led to a growing consensus among Americans that the two-term limit should be protected.
In the midterm elections 18 months after Roosevelt's death, Republicans took control of the House and the Senate, with many of them having campaigned on the issue of presidential tenure and declaring their support for a constitutional amendment to limit how long a person could serve as president. In January 1947, the 80th Congress convened and quickly approved a proposed constitutional amendment setting a limit of two four-year terms for future presidents. This amendment was submitted to the states for ratification, and on February 27, 1951, the requisite number of states had ratified the amendment, now known as the Twenty-second Amendment, which officially set a two-term limit for presidents.
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Judicial review
The concept of judicial review was referenced during the debates at the Constitutional Convention, particularly during the discussion of the Virginia Plan, which included a "council of revision" that would examine and accept or reject proposed federal laws. While the council of revision was not included, the power of judicial review remained a topic of discussion. Alexander Hamilton, in The Federalist Papers, argued in favour of judicial review, stating that the interpretation of the laws is the proper province of the courts and that the constitution is the fundamental law that judges must regard and interpret.
The power of judicial review is derived from the Supremacy Clause, which states that the Constitution is the "supreme law of the land." Federal statutes are only valid if they are made in pursuance of the Constitution, and it is the duty of the federal courts to interpret and apply the Constitution, determining whether federal or state statutes conflict with it. This power of judicial review extends to all cases in law and equity arising under the Constitution, laws of the United States, and treaties made under their authority.
While judicial review is a vital feature of the rule of law, it is important for the courts to respect their institutional limits. Parliament has the right to reverse judicial decisions, but it must be careful not to undermine the role of the courts as a check and balance. The unwritten nature of judicial review provides flexibility, but it can also lead to ambiguities and varying interpretations, which may result in disputes and potential gridlocks.
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The role of political parties
Political parties play a crucial role in the unwritten constitution, which is defined as a constitution where the nation's legal choices, fundamental laws, and norms are not written down or systematically represented in a single document. Instead, they are found in various official documents, customs, practices, and precedents. Political parties, though not mentioned in the written constitution, are a key part of the unwritten constitution and have several important functions.
Firstly, political parties choose candidates for office. They are responsible for identifying, vetting, and nominating individuals to run for elected positions, such as the President, members of Congress, and other government roles. This process involves evaluating potential candidates' qualifications, popularity, and alignment with the party's values and platform.
Secondly, political parties contribute to the formation of government policies and agendas. They develop and promote their own policy platforms, which outline their positions on various issues and proposed solutions. These platforms guide the legislative priorities and decisions of the party's members in Congress and other legislative bodies.
Additionally, political parties play a critical role in representing the interests and perspectives of different segments of society. They advocate for the needs and concerns of their constituents, ensuring that a range of voices are heard in the political process. This representation helps to maintain a balance of power and perspectives within the government.
Moreover, political parties engage in political campaigns and elections. They organize and fund campaigns for their nominated candidates, develop strategies, and communicate their policy platforms to the public. This process involves advertising, grassroots organizing, and participating in debates and other public forums.
Furthermore, political parties often have a role in governing and law-making. When a party, or a coalition of parties, holds a majority in a legislative body, they have the power to advance their legislative agenda and influence the direction of the government. They work to pass laws and policies that align with their platform and the interests of their constituents.
Lastly, political parties also play a critical role in holding the government accountable. They scrutinize the actions and decisions of those in power, challenge policies they disagree with, and offer alternative solutions. This function helps to ensure that the government remains responsive to the needs and preferences of the people.
In conclusion, while political parties are not explicitly mentioned in the written constitution, they are a vital part of the unwritten constitution. They contribute to the functioning of democracy by nominating candidates, forming policies, representing diverse interests, engaging in elections, governing, and providing a check on the power of the government. The role of political parties in the unwritten constitution helps to shape the country's political landscape and ensure that the voices of citizens are heard and represented.
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The role of the cabinet
The tradition of the Cabinet arose from debates at the 1787 Constitutional Convention, where there was a discussion about whether the President should exercise executive power alone or with a group of ministers. The Constitution ultimately vests executive power in the President, but it also allows the President to seek advice from the principal officers of executive departments. George Washington, the first President, organised his principal officers into a Cabinet, and it has been a part of the executive branch ever since.
The Cabinet is made up of the vice president, department heads, and other members appointed by the President. The President chairs Cabinet meetings but is not formally a member. The Cabinet does not have collective executive powers, and its members serve at the pleasure of the President, who can dismiss them at any time. The Cabinet appointments are mostly a formality, with Congress usually deferring to the President's choices.
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The role of the Supreme Court
In the United States, the Supreme Court plays a pivotal role in interpreting the unwritten constitution. The power of judicial review, which emerged from the Marbury v. Madison case in 1803, allows the Court to review and invalidate government actions that contradict the Constitution. This precedent-setting case exemplifies how judicial decisions shape the unwritten constitution. The Supreme Court's interpretations of the Constitution's principles and precedents set by early Congresses and Presidents are also crucial in understanding and applying the unwritten constitution.
Additionally, the Supreme Court's rulings on the constitutionality of laws are essential. While the written Constitution outlines the powers and responsibilities of the government and citizens, the unwritten constitution influences how these powers are exercised and constrained. The Supreme Court interprets the unwritten constitution to determine whether laws or government actions align with the nation's core values and laws and principles. This interpretation ensures that even if the letter of the law permits certain actions, the spirit of governance may counsel against them.
Moreover, the Supreme Court contributes to the evolution of the unwritten constitution. As societal needs change and political power shifts, the Court's interpretations and rulings adapt to these changes. This flexibility allows the unwritten constitution to address contemporary challenges and contexts. However, it is important to acknowledge that this flexibility can also lead to ambiguities and disputes, as interpretations may vary.
In conclusion, the Supreme Court plays a dynamic and pivotal role in interpreting and applying the unwritten constitution. Through judicial review, precedent-setting decisions, and interpretations of core values and principles, the Court ensures that the unwritten constitution guides and constrains governance. The Court's role in the unwritten constitution is essential for maintaining the balance between the letter of the law and the spirit in which it is applied.
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Frequently asked questions
An unwritten constitution is a constitution in which the nation's legal choices, fundamental laws, and norms are not written down or systematically represented in a single document.
Some examples include the two-term limit for presidents in the United States, the principle of judicial review in the U.S., and the role of political parties in choosing candidates for office.
Unwritten constitutional elements evolve over time driven by changing societal needs, shifts in political power, and interpretations of higher authorities. They often emerge from precedents set by early leaders, common practices of citizens, and venerable judicial decisions.
Unwritten conventions can serve as a moderating force in governance, acting as subtle checks and balances. They provide flexibility and allow for the evolution of governance based on changing circumstances.
The unwritten nature of these conventions can lead to ambiguities in interpretation, disputes, and potential gridlocks. Critics argue that this lack of clarity can be exploited by those in power to act in self-serving ways.
