Unwritten Constitution: Exploring The Hidden Features

An unwritten constitution is a constitution whose provisions or laws are not set in writing in a single document but are nevertheless recognised and enforced. While the US Constitution is written, it is supplemented by unwritten sources, such as the precedents set by early presidents and Congresses, common practices of modern American citizens, and judicial decisions. For example, the two-term limit for presidents was originally an unwritten part of the US Constitution, derived from the precedent set by George Washington, but was later added to the written Constitution as the 22nd Amendment.

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The two-term limit for presidents

The two-term limit tradition was set by President Washington, and it was violated when Roosevelt was elected for a fourth term. Roosevelt's decision to seek a third term dominated the 1940 election campaign, with his opponent, Wendell Willkie, running against the open-ended presidential tenure. Roosevelt won and became the only president to exceed eight years in office. However, his deteriorating health led to his death just 82 days after his fourth inauguration.

Following Roosevelt's extended tenure, there was a push for a constitutional amendment to limit presidential terms. In 1944, Roosevelt's opponent, Thomas E. Dewey, announced his support for such an amendment. In 1947, the House of Representatives approved a proposed constitutional amendment, known as House Joint Resolution 27, setting a limit of two four-year terms for future presidents. The Senate also developed its own proposed amendment, which included additional provisions. After revisions, the final resolution was approved by both the House and the Senate.

The resolution was then submitted to the states for ratification, and on February 27, 1951, the required number of states had ratified the amendment, which became the 22nd Amendment to the US Constitution. This amendment formally established the two-term limit for presidents, prohibiting anyone who has been elected president twice from seeking reelection. Since its implementation, the 22nd Amendment has prevented six twice-elected presidents from running for a third term and has also been applied to presidents serving non-consecutive terms.

Customs and precedents

George Washington, the first President of the United States, set a precedent by appointing a cabinet to advise him. He appointed heads (Secretaries) of each of the executive departments, including Alexander Hamilton as Secretary of the Treasury, and John Jay as Secretary of State. Washington held regular meetings with these men, creating what became known as the Cabinet. This precedent has had a profound impact on the executive branch, with the President relying on the Cabinet for advice and decision-making.

Another example of a custom that was added to the written constitution is the two-term limit for presidents. This custom was observed for over a century without any formal enforcement mechanism until Franklin D. Roosevelt ran for a third and fourth term. In response, the 22nd Amendment was ratified in 1951, formally enshrining the two-term limit in the written constitution. This demonstrates the power of customs and precedents in shaping governance and legal interpretation.

In some cases, customs and precedents can hold as much sway as written laws, even if they are not usually legally enforceable. For instance, the committee system used by Congress to review and make recommendations on bills is not mentioned in the written constitution but has a significant impact on the legislative process. Judicial review, another example, is the result of precedent set in the Marbury v. Madison decision, shaping how the executive branch functions.

While the unwritten constitution is a crucial component of governance, it also presents challenges. Controversies may arise due to differing interpretations of customs and usages, particularly in the absence of a single, codified document. However, the unwritten constitution allows for elasticity, adaptability, and the evolution of principles according to political and social forces.

Committee systems

The committee system is a process of governance that is not mentioned in the constitution but is considered essential to the system. It is a mechanism by which Congress wades through and makes recommendations on bills. Each Senator and Congressman belongs to several committees, allowing them to develop expertise in specific areas. This system enhances the efficiency of the legislative branch.

The committee system is a powerful tool for Congress. If a committee chairman refuses to allow debate or a vote on a bill, or if the committee makes a negative recommendation, the bill is effectively killed in committee. This power dynamic highlights the influence of committees in shaping legislation.

While the committee system was initially a part of the unwritten constitution, it has since been incorporated into the written constitution. This change occurred because the committee system is vital to the efficient functioning of the legislative branch.

The unwritten constitution comprises customs and precedents that are not included in the official document but are crucial to democracy. These unwritten elements are essential to the functioning of many countries. They can hold as much sway as the letter of the law. While not legally enforceable, they play a significant role in governance.

In conclusion, the committee system is a crucial aspect of governance, providing efficiency and expertise to the legislative process. Its inclusion in the written constitution underscores its importance and ensures its continued role in shaping legislation. The committee system's evolution from an unwritten to a written part of the constitution highlights the dynamic nature of governance and the recognition of its value.

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Unwritten sources

An unwritten constitution is one in which the laws are not set out in a single document but are nevertheless documented in a variety of official sources. For example, the New Zealand constitution is an amalgamation of written and unwritten sources. The Constitution Act 1986 is central, but it coexists with statutes, orders in Council, letters patent, court decisions, principles of the Treaty of Waitangi, and unwritten traditions and conventions.

Similarly, the US Constitution is supplemented by unwritten sources, including precedents set by early presidents and Congresses, common practices of modern American citizens, and judicial decisions. The two-term limit for US presidents was, for example, an unwritten part of the constitution until 1951 when the 22nd Amendment was ratified, setting a two-term limit.

In some cases, an unwritten constitution may refer to a set of constitutional conventions that, while not legally enforceable, hold as much sway as the letter of the law. For example, some Chinese academics have argued that China has an unwritten constitution based on the comprehensive leadership of the Communist Party.

In other cases, an unwritten constitution may refer to the fact that a country's written constitution does not encompass all the elements of its constitutional system. For instance, Sweden's constitution was the subject of much uncertainty and debate until the Instrument of Government 1809 expressly superseded all previous constitutions.

Unwritten conventions

An unwritten constitution is one in which the laws are not set in a single written document but are nevertheless documented in various forms. For example, the New Zealand constitution is an amalgamation of written and unwritten sources, including the Constitution Act 1986, statutes, orders in Council, letters patent, court decisions, principles of the Treaty of Waitangi, and unwritten traditions and conventions. Similarly, the Chinese constitution is argued by some to be both written and unwritten, based on the comprehensive leadership of the Communist Party.

Unwritten constitutions are often referred to as "uncodified constitutions", and they may include a variety of written elements that are not codified in a single document. These can include statutes, court decisions, treaties, and conventions. While these elements may not be legally enforceable, they can hold significant sway and be recognised as binding upon the government and limiting its powers.

The United States, for instance, has an unwritten constitution that includes various extra-textual aids that support and enrich the written document. These include precedents set by early presidents and Congresses, common practices of modern American citizens, venerable judicial decisions, and privileged sources of inspiration such as the Federalist Papers, William Blackstone's Commentaries on the Laws of England, the Northwest Ordinance of 1787, Lincoln's Gettysburg Address, and Martin Luther King, Jr.'s "I Have a Dream" speech.

In some cases, elements of an unwritten constitution may be incorporated into a written constitution over time. For example, the two-term limit for the American presidency was originally an unwritten part of the constitution, based on the precedent set by George Washington. However, after Franklin D. Roosevelt served as president for over a decade, the 22nd Amendment was ratified in 1951 to formally establish the two-term limit in the written constitution.

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