The Unwritten Unwritten Constitution
I’m going to do a series of posts on what I think will be my next article (or maybe a book). I’ve talked before about the idea that there is a powerful unwritten unwritten constitution. Let me begin by explaining what I mean by this through two examples.
First, there are some acts that would be deemed constitutional in the Supreme Court or in the highest forum of review, but would nonetheless be considered unconstitutional by most voters and elites. How can that be? Consider an analogy. Can the British Parliament do something unconstitutional? One view is no. Parliament is sovereign. It gets to decide what is constitutional. But that is not how the unwritten constitution is understood in the UK even though there is no judicial review. Certain practices or statutes are viewed as fundamental and can only be changed after extraordinary consideration (two general elections, a referendum, etc.) Where do these limits come from? From some deeper view of what the Constitution is–the unwritten unwritten law.
I’m going to give many examples of this phenomenon, but here’s one. It is constitutional for Congress to expand the size of the Supreme Court. The text clearly gives that authority to Congress, and it has been exercised in the past. If it was exercised tomorrow, no court could strike it down. When FDR tried this in 1937, though, lots of people argued that it was unconstitutional. Why? Because they came to believe that a partisan expansion of the Supreme Court would be totally inconsistent with separation of powers and the rule of law. Now consider an alternative that I discussed with my students. Suppose we really thought that the Supreme Court would function better with 15 members. How could that be done? Probably the answer would be to give each party three Justices in that reform. Most people would think that was constitutional. In both cases, however, an unwritten unwritten principle is being invoked–partisan balance with respect to fundamental structural change. (Another version involves a hypothetical plane crash that kills four Justices. I doubt that the President could just pick four replacements that he likes, confirmed by a Senate controlled by his party. That would lead to a “constitutional crisis.”)
Second, there could be some force that limits constitutional actors in practice even though it will never be openly stated. Try this one on. Why would a decision declaring same-sex marriage a constitutional right not lead to a decision that polygamy is a constitutional right? Now we could answer this by exploring the differences between the two and drawing a principled line between them. But we could also say the following: Polygamy will not be recognized as a fundamental right because no state permits it. This is just another way of describing the state of public or elite opinion, of course, but that could lead us inductively to conclude that “The Supreme Court will not declare something illegal in all 50 states to be constitutionally required.” We could take that further and say “2/3 of the states,” “3/4 of the states,” or some other ratio. If the Supreme Court does not strike down same-sex marriage across the board in June, it is probably not because of the doctrine or the logic. It is because, I submit, too many states still ban same-sex marriage. There is, in that sense, an important unwritten norm stemming from federalism that constrains the Court.
Anyway, I’ve got a lot more of these to go through. Hope it will be fun for you.