The Unwritten Constitution
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.