The Unwritten Constitution
The unwritten constitution are those processes of our government that are considered an essential part of the system yet they are not actually in the Constitution. These are customs and precedents that have been doing for so long that many citizens think these are, in fact, laws yet they are not.
Parts of the Unwritten Constitution:
The Cabinet:
George Washington’s first task as President of the United States was to appoint Secretaries (heads) of each of the executive departments. He appointed Alexander Hamilton Secretary of the Treasury, John Jay Secretary of State until Thomas Jefferson returned from Europe and Henry Knox was made Secretary of War. John Adams was the Vice
President. Washington took things a step further when he called regular meetings to get the advice of these men. He therefore created what became known as the Cabinet. The formation of a cabinet to advise the president is a precedent set by George Washington. The Constitution neither required nor suggested Washington do this. Since then every president has had one. Today the cabinet is much lager and is comprised of the heads of the various federal agencies and departments as well as key advisors.
The Electoral College Promise:
When the Electoral College originally voted it was on its own. No one would tell the college how to vote. This was a rather
undemocratic method of electing a President. In 1824 the nation, for the first time, took a popular vote. The electors then voted based upon the popular vote of each state. The fact that the electoral college votes by state according to the majority of the popular vote of that state is not in the constitution. In fact it is merely a promise and historical precedent.
Judicial Review
The power of the Supreme Court to declare laws unconstitutional is not in the constitution yet it has become one of the basic tenants of the checks and balances system. As previously discussed judicial review is a result of precedent set in the Marbury v Madison decision.
Political Parties
While today we rely on political parties to help us choose candidates for president and all other offices there is no mention of this in the constitution.
Congressional Committees
Congress uses a committee system to wade through and made recommendations on bills. Each Senator and Congressman belongs to several committees and develops expertise in that area. Committees have enormous power because if a committee chairman pigeonholes (refuses to allow debate or a vote) a bill or the committee makes a negative recommendation then the bill dies in committee. There is no mention of this committee system in the constitution. It was
developed because it is a more efficient way to run the legislative branch.
Term Limits for President
(**Note – This is no longer a part of the unwritten
Constitution, it is now a written part of the Constitution!)
As an example of how important the unwritten constitution has become one might cite the example of the two term limit. Our first President George Washington refused to run for a third term. He felt that to rule for longer than that might give one man too much power and influence. In doing so he set a precedent that was followed until Theodore Roosevelt. Roosevelt also followed the precedent set and when he was finished with his second term did not run again. A young man (50) Roosevelt continued to be active in his political party. When Taft was President (Roosevelt’s choice by the way) Roosevelt became enraged at the way the new President did things. In response he ran for President under a new third party named the “Bull Moose Party.” Roosevelt split the vote with Taft and a Democrat, Woodrow Wilson, was elected.
It took another Roosevelt, Franklin Delano Roosevelt (FDR), to violate the precedent a second time. FDR ran for, and won a third and a fourth term. FDR died before serving his fourth term and his Vice President, Harry S. Truman, took office. Many Americans, while loving FDR, recognized that the two term limit should be protected. FDR was President for over a decade. In 1951 the 22nd amendment was ratified setting a two term limit. In doing this we made a part of the unwritten constitution a part of the written constitution.
Imagine what life would be like in America if these customs and precedents were not used. If the President did not have a cabinet would he be an effective leader of the executive branch? Would he be able to make the right decisions? If the electoral college ignored the state popular votes would the American people accept their choice of President? How could our political system operate without political parties and how efficient would Congress be if committees did not exist? Could we reasonably expect all members of Congress to be knowledgeable about all aspects of government? The committee system lets them develop expertise in certain areas.
As an example of just how important these customs and precedents are, look at the term limit issue. When a President violated the precedent set by Washington the nation thought it was so important that we created a Constitutional Amendment to make that portion of the unwritten Constitution into a part of the written Constitution.
The Unwritten Constitution – An Essay by Anonymous
The Constitution, for many countries, is a foundational document that encapsulates the fundamental principles upon which a nation is built. It lays out the design of the state’s government, the rights of its citizens, and the mechanisms by which power can be exercised and checked. While the formal, codified aspects of a constitution are typically the most visible, many countries also possess unwritten elements that are equally essential. These unwritten components, collectively referred to as the “Unwritten Constitution,” hold profound implications for governance, legal interpretation, and the preservation of societal norms.
Origins of the Unwritten Constitution
Before delving deeper into its significance, it is essential to understand the genesis of the unwritten constitution. Often, these derive from historical customs, conventions, judicial decisions, and the shared understanding of a nation’s people about governance. For instance, in the UK, the constitution is largely unwritten, rooted in historical documents, laws, and traditions like the Magna Carta, the Bill of Rights, and common law principles. In contrast, countries like the United States, with a codified constitution, also have unwritten conventions and interpretations that have evolved over time.
The Evolution of Governance Through Unwritten Constitutions
Unwritten constitutional elements are not static; they evolve. This evolution is driven by the changing needs of society, shifts in political power, and interpretations of higher authorities such as the judiciary. For instance, the principle of judicial review in the U.S.—the ability of the courts to review and potentially invalidate government actions that violate the Constitution—is not explicitly stated in the written document. Instead, it emerged from the landmark 1803 case, Marbury v. Madison, setting a precedent for future constitutional interpretations.
Such conventions and principles, once established, often become deeply embedded in the governance fabric of a nation. They might not be formally documented, but their violation or disregard can lead to significant constitutional crises or political upheaval.
Advantages of the Unwritten Constitution
The unwritten nature of these elements provides flexibility. As societies evolve, so too do their needs and understandings of governance. The unwritten constitution can adapt more readily to these changes, whereas altering a written constitution often requires cumbersome processes and broad consensus.
Another advantage is that unwritten conventions can serve as a moderating force in governance. While the written constitution provides the skeleton, the unwritten elements are the sinews and ligaments that facilitate movement. They can act as subtle checks and balances, ensuring that even when the letter of the law permits certain actions, the spirit of governance may counsel against them.
Challenges Posed by the Unwritten Constitution
However, the unwritten nature also poses challenges. For one, it can lead to ambiguities in governance. Without a clear written guide, interpretations might vary, leading to disputes and potential gridlocks. Critics argue that this lack of clarity can be weaponized, allowing those in power to act in self-serving ways under the guise of following unwritten conventions.
Additionally, the unwritten constitution, by its nature, relies heavily on collective memory and shared understanding. As generations change, these memories might fade, and understandings may shift, leading to potential erosion of crucial governance principles.
The Unwritten Constitution in Modern Times
In an age of rapid information dissemination and global interconnectedness, the unwritten constitution takes on a new dimension. The shared values and norms of a society, even if not codified, can be quickly spread, discussed, and even critiqued on a global scale. This global lens can serve as both an amplifier and a check. On the one hand, global attention can spotlight violations of unwritten conventions, applying pressure on nations to adhere to shared norms. On the other, it can also lead to a homogenization of values, potentially eroding unique unwritten constitutional elements intrinsic to specific cultures or societies.
Conclusion
In sum, the unwritten constitution, while less visible than its written counterpart, is a dynamic and integral aspect of governance. It embodies the evolving spirit and values of a nation, providing both flexibility and a deep-rooted sense of identity. However, with its advantages come challenges—ambiguities, potential for misuse, and the need for continual societal reaffirmation. As we navigate an ever-changing global landscape, it becomes crucial for societies to recognize, preserve, and critically engage with both the written and unwritten facets of their constitutions, ensuring that they continue to serve as beacons of governance, rights, and values.
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