Legal but Unconstitutional
Recently I read a draft paper by Adrian Vermuele on “Conventions in Court” that was helpful for the research that I’ve been doing for my next article. He points out that in the British constitutional tradition there is a concept called “legal but unconstitutional.” In other words, Parliament is sovereign and can do what it wants, but some acts would violate customs of the realm that are so fundamental that they would create a constitutional crisis. (For example, repealing the Bill of Rights of 1689 or the Magna Carta).
This is the same as the concept of the “Unwritten Unwritten Constitution” that I have discussed in a number of posts. People weren’t crazy about that formulation because it was so clunky. (I agree.) “Legal but unconstitutional” captures the idea much better. An obvious example would be a runaway Electoral College that decided to pick its own President. That would be legal–presidential electors can vote for whomever they want, but that act would create a constitutional crisis of the highest magnitude.
Vermuele also observes that in Commonwealth countries (such as Canada) the rule is that courts may not enforce these constitutional conventions themselves, but they must acknowledge the convention in reaching their decision. In other words, pretending that no convention exists when it does would be a kind of silly formalism, but taking that to the next level and saying that customs can displace the text is not appropriate. I’ll have more to say on that later.