Eleanor Finch
The concept of an unwritten constitution has been explored by several scholars, including Akhil Reed Amar, George Thomas, and Farah Peterson. Thomas, in his book The (Un)Written Constitution, argues that interpretations of the Constitution are influenced by unwritten understandings, assumptions, and political theories. Peterson, a legal historian, investigates the unwritten constitution through the lens of historical events like the Boston Tea Party, revealing how colonists' actions reflected ideas not included in the written document. Amar's work, America's Unwritten Constitution, highlights the role of values, precedents, and practices that complement and complete the written Constitution. These scholars and others contribute to our understanding of the unwritten constitution, its evolution, and its impact on governance.
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What You'll Learn
The unwritten constitution's flexibility
While written constitutions are explicitly set out in a single document, unwritten constitutions are based on a combination of statutes, conventions, and judicial decisions. They are often found in countries with long histories and stable political systems, such as the United Kingdom and New Zealand.
The unwritten constitution offers flexibility and adaptability, allowing for quick responses to changing circumstances or addressing pressing issues without requiring lengthy or contentious procedures. This flexibility also provides an opportunity for broad participation in the amendment process, allowing for diverse perspectives to be considered.
However, this flexibility comes with trade-offs. Unwritten constitutions may lack clarity and can be vague, leading to potential uncertainty and inconsistency in governance. They might not provide the same level of protection for individual rights as written constitutions, potentially leaving citizens vulnerable to arbitrary actions by those in power.
The flexibility of unwritten constitutions also extends to interpretation. The interpretation of an unwritten constitution depends on factors such as precedents set by early leaders, common practices of citizens, judicial decisions, and privileged sources of inspiration. For example, Professor Farah Peterson of Princeton University and Yale Law School investigated why colonists dressed as Native Americans at the Boston Tea Party and uncovered an untold story about an unwritten American constitution.
In conclusion, the unwritten constitution's flexibility allows for quick adaptation to changing circumstances and broad participation in the amendment process. However, this flexibility can also lead to potential uncertainty and inconsistency and a lack of protection for individual rights. The interpretation of unwritten constitutions depends on various factors, and scholars continue to debate the underlying ideas and understandings that guide the reading of the text.
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The unwritten constitution's role in constitutional crises
While the exact query "who first wrote about the unwritten constitution" did not yield any results, there are several sources that discuss the unwritten constitution, particularly in the context of the United States.
The unwritten constitution plays a crucial role in shaping how a country's constitution is interpreted and applied in practice. It comprises fundamental principles, norms, and practices that guide the interpretation and implementation of the written constitution. While the written constitution serves as the foundation for a country's government and legal system, the unwritten principles are essential for understanding the full scope and implications of the constitution.
In the United States, the unwritten constitution includes customs, traditions, and executive practices that influence how the written constitution is interpreted. For example, the President's State of the Union address is not constitutionally mandated but has become a well-established tradition. Similarly, the "blue slip" tradition, where senators give deference to the president's nominees for federal judgeships, is an unwritten rule that influences the nomination process.
The unwritten constitution also encompasses judicial decisions and interpretations. Landmark court cases, such as Marbury v. Madison and Brown v. Board of Education, have had a significant impact on shaping constitutional law and interpretation. Judicial review ensures the application of constitutional principles in specific cases and helps resolve conflicts between different branches of government.
In the context of constitutional crises, the unwritten constitution can play a role in several ways. Firstly, it can provide a framework for resolving constitutional ambiguities or conflicts. When the written constitution fails to provide clear guidance or is politically infeasible to follow, the unwritten principles and precedents can help navigate these challenges. For example, during the United States presidential succession of John Tyler, a constitutional crisis was resolved by establishing the precedent that a successor to the presidency assumes the office without any limitation.
Secondly, the unwritten constitution can contribute to a constitutional crisis if there is a disagreement or conflict over the interpretation of its principles. This can occur when there are differing views on the fundamental concepts, principles, and commitments embodied in the unwritten constitution. For instance, the secession of the southern U.S. states in 1860 and 1861 can be considered a constitutional crisis where the interpretation and application of constitutional principles, such as states' rights and federal authority, were at the heart of the dispute.
In summary, the unwritten constitution plays a crucial role in shaping a country's constitutional framework by providing context, guiding interpretation, and resolving ambiguities. However, it can also contribute to constitutional crises when there are conflicting interpretations or when the unwritten principles are at odds with the written constitution. Understanding the unwritten constitution is essential for a comprehensive grasp of a country's legal system and for navigating constitutional challenges.
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The unwritten constitution in the UK
The United Kingdom is often described as having an "unwritten" constitution. However, this is not entirely accurate. While the UK does not have a single, unified document that outlines its constitution, it does have a constitution that is spread across various sources, including specific Acts of Parliament, constitutional conventions, judicial decisions, and treaties. This dispersal can make the UK's constitution more challenging to identify and understand compared to countries with codified constitutions.
The UK's constitution is unique in that its core aspects are not contained in a single legal source. This distinct feature can be partly attributed to the country's history. Unlike nations like France and Italy, the UK did not experience a significant revolution or political rupture during the late eighteenth or nineteenth centuries, when written constitutions gained prominence following the American Revolutionary War.
The UK's constitution is found in several places, including leading statutes, conventions, judicial decisions, and treaties. Examples of constitutional statutes include the Bill of Rights 1689, the Acts of Union 1707 and 1800, the Act of Settlement 1701, the Parliament Acts 1911 and 1949, and the Human Rights Act 1998. Conventions, which are unwritten agreements without legal force, include the monarch acting on ministerial advice and the Prime Minister sitting in the House of Commons.
The UK's constitution also includes certain Acts of Parliament that have special constitutional status, such as the Magna Carta, which dates back to 1215. The Magna Carta established principles like fair trials and free movement, and while it was written in Latin, it is considered an important part of the UK's constitutional history. The UK's constitution is easily amendable, and changes are made more frequently compared to many other constitutions. This flexibility has allowed for significant developments, such as the removal of hereditary peers from the House of Lords and the creation of the Supreme Court.
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The unwritten constitution in the US
The US Constitution, the country's second written constitution, was drafted by 55 delegates to the Constitutional Convention in Philadelphia, Pennsylvania, during the summer of 1787. The main authors of the Constitution were James Madison, Alexander Hamilton, and John Jay. Madison is often called the "Father of the Constitution" due to his extensive contributions to the drafting process. He was the primary author of the Virginia Plan, which formed the basis for much of the Constitution.
However, the US Constitution is considered to have an unwritten dimension, which cannot be understood in textual isolation. Akhil Reed Amar, a Yale law professor and constitutional scholar, argues that the written Constitution points to an unwritten one. Proper constitutional interpretation depends on a variety of factors, such as the precedents set by early presidents and Congresses, common practices of modern American citizens, venerable judicial decisions, and particularly privileged sources of inspiration and guidance. These extra-textual aids support and enrich the written document without supplanting it.
The unwritten Constitution includes various supplements that help make sense of the written Constitution. These include 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. The Federalist Papers, a series of 85 essays, were written by Madison, Hamilton, and John Jay to defend the Constitution and probe the weaknesses of the Articles of Confederation.
The unwritten Constitution also encompasses the precedents and principles that shape how Americans interpret and apply the written Constitution. This includes the precedents set by early presidents and Congresses, such as George Washington, who was unanimously elected president of the Philadelphia convention in 1787. The common practices of modern American citizens and venerable judicial decisions, such as the Supreme Court's interpretation of the Constitution, also play a role in the unwritten Constitution.
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The unwritten constitution and the two-term limit
The United States Constitution is a revered text in American law and politics, but it does not explicitly mention all the rules, rights, principles, and procedures that govern the nation. This has given rise to the concept of an "unwritten constitution", which refers to the values, precedents, and practices that complement and complete the written Constitution.
One example of an unwritten aspect of the Constitution is the two-term limit for presidents. While the 22nd Amendment explicitly states that no person shall be elected to the office of the President more than twice, this amendment was only added to the Constitution in 1951, and it did not prevent presidents from serving more than two terms in the past.
The two-term limit has its roots in an unwritten precedent set by George Washington, who served as president for a maximum of two terms. This precedent was followed by subsequent presidents until Franklin D. Roosevelt, who was elected to four terms in office between 1932 and 1944. Roosevelt's extended time in office raised concerns, and the 22nd Amendment was enacted to codify the two-term limit into the Constitution.
The two-term limit, both as an unwritten precedent and a formal amendment, reflects a commitment to democratic principles and a desire to prevent the concentration of power in a single individual. It also highlights the dynamic nature of the Constitution, which has evolved and adapted to changing circumstances and interpretations over time.
In conclusion, the unwritten constitution, including precedents like the two-term limit, plays a crucial role in shaping the interpretation and application of the written Constitution. While the written Constitution serves as the foundation of American law and governance, the unwritten constitution helps to fill in the gaps and address issues that were not explicitly contemplated by the Founding Fathers.
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Frequently asked questions
George Thomas wrote about the unwritten constitution in his book, 'The (Un)Written Constitution'.
The unwritten constitution refers to the unwritten ideas, understandings, conventions, and interpretations that guide the reading of a written constitution.
The two-term limit for American presidents was an unwritten convention until it was formally added to the written constitution in 1951. Another example is the principle of judicial review in the US, which is not explicitly mentioned in the written constitution.
The unwritten constitution provides flexibility and adaptability as it can evolve with the changing needs and understandings of society. It serves as a moderating force in governance, acting as a check and balance to the written constitution.
The interpretation of the unwritten constitution can be influenced by historical customs, conventions, judicial decisions, shared understandings of a nation's people about governance, and political theory.
