The Unwritten Constitution
posted by Gerard Magliocca
Over on Volokh, Ilya Somin posted a response to my post on Balkinization about Akhil’s Amar’s new book. (Got all of that straight?) My post said that there are many political norms in the United States that should be considered “constitutional” because they are deeply entrenched. (I added that Akhil’s book seems to limit the unwritten Constitution to subjects where a court (or the highest legal authority, such as the Senate in an impeachment trial) would or should act.)
Ilya does not agree that a political norm should be called constitutional. Here’s why:
“A political norm can change simply because a majority of the people (or sometimes even just a majority of the political class) no longer believe it should be followed. If Congress, the president, and majority public opinion all agreed that there should be fifteen justices on the Supreme Court instead of nine, few would complain that there was any constitutional impropriety in doing so. The same point applies if majority public and elite opinion wanted to abolish federal district courts or repeal the Civil Rights Act of 1964. By contrast, a constitutional limitation requires a constitutional amendment to get rid of. That cannot be done without a much larger majority than is needed to change an unwritten political norm.”
Unfortunately, Ilya does not offer a persuasive descriptive account of the Constitution. Some of these mere norms would be far harder to change than many Supreme Court decisions. In other words, Ilya is being too formalist. Citizens United rests on shaky ground right now even though it is a written constitutional limit. A realistic assessment would not put it above the Civil Rights of Act of 1964 on a “settled” scale. (Perhaps this problem would disappear if we stopped using constitutional and just used “settled” or “unsettled” to describe various customs or authorities.) Under Ilya’s definition, the British have no Constitution at all because the entire thing (aside from some treaties with the EU, I suppose) consists of norms that can be changed by Parliament at will.
I’m off to DC to talk about Bingham, but perhaps we will continue this debate after I return.
September 16, 2012 at 6:41 pm
Posted in: Constitutional Law
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Responses (8)
Brett Bellmore - September 17, 2012 at 12:34 pm
You seem to conflate “constitutional limitation” with “Supreme court decision”. But unless our lawmakers are utterly unwilling to admit any limitation the Court isn’t presented with and rules on, they must be different concepts, no?
Surely there must be some genuine constitutional limitations which have no associated Supreme court rulings, because nobody has as yet made a serious effort to violate them?
Joe - September 17, 2012 at 2:51 pm
Where does he (I’m not even totally sure what “you” is being referenced here) do that “conflation”?
Brett Bellmore - September 18, 2012 at 7:38 am
The “you” is Gerald, and the paragraph is the fourth. Ilya speaks of constitutional amendments. But Gerald’s response is, “Some of these mere norms would be far harder to change than many Supreme Court decisions.” And he doesn’t address the subject of amendments at all.
But Ilya wasn’t talking about changing Supreme court decisions, he was talking about changing the Constitution. You know, that little pamphlet you can get in a pocket edition? But Gerald doesn’t seem to accord the written Constitution any significance except to the extent a court has ruled on it.
Ilya was pointing out something Gerald seems to want to deny, but not explicitly: The Constitution is not without effect even when the courts are willing to countenance violations of it.
For instance, we endured over 70 years between the Miller and Heller cases, during which the Supreme court flatly refused to grant cert to any case where the 2nd amendment was asserted, and the lower courts took this opportunity to eviscerate an explicit constitutional guarantee. The Second amendment was as completely killed off by the judiciary as it gets, as void of legal force as the 14th was for a long while.
And yet, can you honestly say that the 2nd amendment was without any effect in America during that time? We’d never have gotten the Heller decision were that the case.
Likewise, how would we have gotten to Brown without the 14th amendment out there, unenforced, sure, but still there for anybody to read, and see that the most fundamental law of the nation was being violated?
Because the Constitution sits there, for anyone to read, even the parts that the courts are currently refusing to enforce, it has an effect even where the courts refuse to uphold it. It delegitimatizes contrary practice, it motivates opposition.
And amendments can change this. For instance, the 16th amendment. Opponents to the income tax still abound, but pretty much everybody except a few cranks recognizes that the income tax, like it or not, is constitutional.
If the gun control movement had gone the route of repealing the Second amendment, instead of just encouraging the courts to treat it as a dead letter, who could have said that gun control was unconstitutional, without being as much a crank as some tax protestors are today?
The Constitution, the written Constitution, distinct from mere court rulings concerning it, is indeed a different beast from simple norms.
And, Gerald? No, the British don’t have a constitution. Not in the sense we do. They get by, actual constitutions are an innovation that came along well after government evolved, and are not necessary to it’s existence and functioning. But they don’t have one, and it does make a difference at times.
Joe - September 18, 2012 at 11:48 am
The reference is a challenge to how “simple” in real life to change unwritten norms such as number of justices. Such norms in practice (as compared to theory) more enmeshed than many court decisions — Plessy overruled by Brown as nine justices continued to be a norm.
From this, and to you it is so very obvious you drip with disdain, you get “seem to accord the written Constitution any significance except to the extent a court has ruled on it” … this might be your inference, but he didn’t actually say that. Maybe it’s “unwritten.”
Gerald didn’t say that the “Constitution is not without effect even when the courts are willing to countenance violations of it.” He actually cited a case (Senate/impeachment) not involving them. In fact, the unwritten Constitution, such as nine justices, doesn’t even require courts. Society might believe the norm is violated even if the courts don’t say otherwise.
“The Second amendment was as completely killed off by the judiciary as it gets, as void of legal force as the 14th was for a long while.”
How? The 2A was still there & unlike segregation, a majority of society actually acted like there is a right to be armed, Congress and the President (before Heller) reaffirmed it, and so forth. Your continual denial of history here is laughable and offensive. Duly noted that (note that Brett says, unlike the official platform of the Republican Party, Heller is a joke) you don’t think gun rights were protected enough. Perspective helps though. Compare gun rights in the 1990s to a typical black person in 1930s Alabama. “as” void? No.
“The Constitution, the written Constitution, distinct from mere court rulings concerning it, is indeed a different beast from simple norms.”
His “written” text doesn’t actually deny this. The two are “different beasts.” The two also exist.
“the British don’t have a constitution. Not in the sense we do”
The OP doesn’t say the Brits have a constitution “in the sense we do.” It challenges the idea it has no “constitution” at all. The concept of “constitution” was not invented by the United States; the word was used in the British sense too, so “actually” that is a type of Constitution.
Regardless, society recognizes, in different ways, written constitutional rules and unwritten constitutional rules. The two also overlap — structural principles of the written constitution are applied in ways that are not expressly written. This being true also doesn’t change the fact that both set of rules might exist even if the power that be doesn’t honor them. The OP doesn’t say otherwise.
Joe - September 18, 2012 at 12:16 pm
One reason the 2A was not really “eviscerated” was that the lower federal courts didn’t actually do so to the extent of a Plessy ruling.
There is ONE ruling to my knowledge that expressly dealt with the Heller issue — basic ownership of firearms, not regarding felons (the majority of the cases I have found) or (and this not too often) some specific type of gun not anywhere as broadly owned. The one case, Quicili, didn’t even just involve the home, though the dissent argued for a privacy right in that context.
Meanwhile, courts in case after case upheld segregation, voting limitations affecting blacks, denial of criminal justice protections involving blacks etc. Likewise, unlike a myriad of state rulings upholding gun rights, the states similarly denied blacks rights.
As noted, unlike blacks in the segregated South, gun ownership was broadly honored, including express statements as to the right to one being reaffirmed by congressional and presidential proclamations. But, surely, as noted, the text (like unwritten norms) was a means to push against accepted doctrine. Gerald didn’t say otherwise.
Brett Bellmore - September 19, 2012 at 7:07 am
Joe, you DO notice that you’re contrasting the treatment of blacks in states that favored discrimination, with the treatment of gun owners in states that didn’t favor gun control? The point wasn’t that the courts ordered discrimination, it was that they flatly refused to enforce the 2nd amendment. That refusal didn’t imply that all jurisdictions were trying to violate it, any more than the refusal of the courts to enforce the 14th meant that all jurisdictions implemented discrimination against blacks.
There was less difference between the courts’ treatment of the 14th, and the 2nd, than you want to admit.
But, no, Gerald didn’t say otherwise. To have said otherwise, he’d have had to actually acknowledge Ilya’s argument. And that was my real point: Ilya was talking about the Constitution, Gerald was responding as though he’d been talking about court rulings.
And they aren’t the same thing.
Jordan J. Paust - September 19, 2012 at 1:06 pm
Don’t forget the “written” 9th Amendment, which incorporates human rights by reference. Human Rights and the Ninth Amendment: A New Form of Guarantee, Cornell L. Rev. (1975). Note therein some of the recognitions of some of the Founder/Framers that no words could adequately capture all of the rights at stake, their content, and their reach, etc.
Eric Hodgdon - September 24, 2012 at 1:46 am
Supreme Law of the Land, but no mechanism to enforce it.
“Oh my gosh, that’s a Political Question.”
Negligence, but no way to enforce the Constitution.
‘If the people don’t like it, they can change it.’ Paraphrase of Federalist #? Sadly, most likely Madison. Change it? Congress refuses to honor Article V. So, it’s a Political Question.
…Commander in chief…when called into the actual Service…
Art 2 Sec 2
War Powers Resolution/Act – Congress creates out of thin air powers not listed, and gives them to the executive, thus creating the Office of the Dictator. Must be another one of those convenient Political Questions to avoid being responsible.
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