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.

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14 Responses

  1. A.J. Sutter says:

    Sorry – could you please explain what’s added by using a double “unwritten” for these examples? I’m not getting it. They seem like a single “unwritten” would be enough.

  2. Joe says:

    How would you say this is different from Prof. Amar’s recent book? What does the second “unwritten” give you?

    He seems to cite various unwritten norms that are technically not unconstitutional under current law though we in effect act as if they were. It goes against certain “principles” or something. The second example seems to touch upon a current constitutional principle — substantive due process or cruel and unusual is in part a matter of nose counting. Something like polygamy is so unsupported that it doesn’t violate decency or whatever to not protect it.

    But, you have a lot more of these, so go right ahead.

  3. Gerard Magliocca says:

    Excellent questions!

    The title is meant to distinguish this from Amar’s project. Now how are they different? That’s one thing that I’m trying to figure out. It could just be that I will focus on different unwritten ideas. It could be that I not talk about any that are judicially enforceable. So the posts will help me think that through.

  4. Jimbino says:

    The two-party system is not enshrined in either the Constitution or public opinion, so dividing the 4 new Supreme Court seats between Dems and Reps would not be constitutional.

    The biggest unwritten part of the Constitution has to do with the meaning of words used. Especially important for “militia.”

  5. Brett Bellmore says:

    I think this is just over-using the word “constitution”, to no real purpose.

  6. Shag from Brookline says:

    Keith Whittington, claimed by some to be the “father” of the “New Originalism,” has a draft paper “The Status of Unwritten Constitutional Conventions in the United States,” available at:

    http://ssrn.com/abstract=2244944

    I’m about 2/3rds through its 19 dense pages. Perhaps this may be a variation of the “New Originalism.”

  7. Joe says:

    I think the problem might be over-using the word “unwritten.”
    Many of these things are actually in there or more like details that are inferred from the tips of the iceberg like the 1A not clarifying what is covered exactly.

    One issue that might be relevant here is slavery in antebellum times. The Constitution did not compel it, but slaves were repeatedly treated like “property” (the text in fact expressly calls them persons) and things like the Fugitive Slave Clause was interpreted to give more rights to slaveowners than the text demands. See, e.g., Prof. Fehrenbacher’s final book.

  8. Shag from Brookline says:

    Slavery was part of the written Constitution even though that word was not referenced. The public understanding was quite clear, not only in the Slave States but in the Free States as well. I recently read Randy Barnett’s brief (only 7 pages!) “Welcome to the New Originalism: A Comment on Jack Balkin’s Living Originalissm” available at:

    http://ssrn.com/abstract=2243115

    In Barnett’s welcome to Jack, he presents his own path from nonoriginalism to originalism, having seen the light from his readings of Lysander Spooner, especially Spooner’s “The Unconstitutionality of Slavery” originally published in 1845. Spooner was challenged back then, including very firmly by Wendell Phillips. Prior to Spooner’s paper and thereafter, on the ground, slavery was real, recognized by the Supreme Court, including by Justice Story prior to Dred Scott. There were enough words written in the Constitution to demonstrate that the Constitution clearly supported slavery, even though the words slavery, slave, etc, were not used. Maybe that’s how Barnett saw the light around the year 2000 but that was a pretty dim one.

    By the way, while Jack is listed in the “New Originalism” chapter of constitutional interpretation/construction, the differences between them are significant. It should be pointed out that after Dred Scott and John Brown’s Raid, Spooner saw the light brightly by way of reality.

  9. Joe says:

    Randy Barnett at Volokh Conspiracy recently cited his new article (longer) on Salmon Chase, who put forth a dissenting view on just what the Constitution “says” about slavery.

    The issue is not that it protected in some sense. It is how much. For instance, what Story deemed clear in Prigg v. PA, including the illegitimacy of states having minimum anti-kidnapping statutes to protect free blacks, is not necessarily compelled even if Art. IV provides some sort of protection to slave owners in that area.

    Robert Cover in “Justice Accused” also covered this ground on just what people were “compelled” to do.

  10. Brett Bellmore says:

    “In Barnett’s welcome to Jack, he presents his own path from nonoriginalism to originalism,”

    No, he attempts to rob the term “originalism” of all meaning by using it to refer to his personal version of living constitutionalism.

    And, no, the Constitution didn’t support slavery. It was very carefully written to not engage the topic at all. To the “if you’re not with me, you’re against me” school of thought, that’s support. But they very clearly left it to be politically resolved, aside from some minor compromises each way. (Reducing representation of slave states, bans on importing slaves temporarily prohibited.)

    It’s not all they should have done to attack slavery, but not attacking with vigor isn’t the same thing as support.

  11. Joe says:

    Balkin shows how let’s say abortion rights can be protected by using original understandings such as opposition to class legislation and how this robs the term “of all meaning” as compared to any number of others who manage to explain how originalism justifies things the vast majority of people of the era would have found almost risible remains unclear to me.

    This does come off as satire, but that’s originalism’s problem, not Balkin’s. Balkin et. al. also show how “living constitutionalism” is in fact what the text and original understanding (see, e.g, Madison) suggests. This might upset some originalists but again not his problem.

    The Constitution does “support” slavery. It does “engage” the topic. Brett says so by use of qualifiers (“aside from” … “minor”).

    Once the material is there, the understandings of the age (the “unwritten” part — the text and principles are applied with certain understandings that change over time … the “living” part … the flexibility part of the point of a constitution we are expounding) can decide slavery is worthy of more protection than the text demands. So, the Constitution “supports” slavery. It doesn’t now with the 13A. The word “support” has various meanings.

  12. Joe says:

    [the exception for those duly convicted of a crime is noted]

  13. Shag from Brookline says:

    Perhaps Brett is lingering in the early days of originalism (circa 1980 via Ed Meese) based on “original intent” originalism that Paul Brest eviscerated in his great 1980 article noted at footnote 5 of Barnett’s short paper. Or perhaps Brett can demonstrate that originalism as interpretive theory started in 1789; before “originalism” can be robbed of its meaning, it has to be defined. C.J. Marshall in McCulloch v. Maryland (1819) did not reference “originalism.”

    Barnett has a section in his paper headed “My path from nonoriginalism to originalism” that led him to his book “The Lost Constitution:…..” Before that he described himself as a Dworkinian.

    I just finished reading Jack Balkin’s “The American Constitution as ‘Our Law'”, a response to commentators on his “Living Originalism” and “Constitutional Redemption at a recent symposium. [A link to this paper is provided in a recent post by Jack at Balikinization.] At page 143, Jack provides an “abbreviated history” on constitutional interpretation, setting forth changes that have taken place over the years. I think the “New Originalism” is being broadly challenged. Of course the earlier versions of originalism have faded. Some have hinted at a “New, New Originalism.” Thus originalism continues to evolve, giving it at least some life.

  14. Shag from Brookline says:

    Skeptics of the Constitution and slavery (pre-Civil War) might consider Paul Finkelman’s “How the Proslavery Constitution Led to the Civil War” available at:

    http://ssrn.com/abstract=2243060