What does it mean for something to be part of America's "unwritten Constitution"? Give at least three examples of ideas, practices, or texts that can properly be considered part of America's unwritten Constitution, explain what it is about them that gives them such a status, and describe how they have influenced our understanding of the written Constitution.
The unwritten Constitution relies mainly on customs, conventions, case laws and other laws, as it’s the case of the English Constitution.
An uncodified Constitution has the advantages of elasticity, adaptability and resilience. A new condition or situation of government may be resolved by precedent or passing legislation. Unlike a codified Constitution, there are no special procedures for making a constitutional law and it will not be inherently superior to other legislation. A country with an uncodified Constitution lacks a specific moment where the principles of its government were deliberately decided. Instead, these are allowed to evolve according to the political and social forces arising throughout its history.
The following nations can be considered to have an uncodified Constitution: Israel, New Zealand, Saudi Arabia and United Kingdom of Great Britain and Northern Ireland.
Professor Akhil Reed Amar, in his excellent book America's Unwritten Constitution, presents some concepts for something to be part of it. He explains that the solution to many constitutional puzzles lies not solely within the written document, but beyond it - in the vast trove of values, precedents, and practices that complement and complete the terse text. Professor Amar carefully shows how America’s foundational document can’t be understood in textual isolation. Proper constitutional interpretation depends on a variety of factors, such as the precedents set by early presidents and congresses; common practices of modern American citizens; venerable judicial decisions; and particularly privileged sources of inspiration and guidance, including the Federalist papers, William Blackstone’s Commentaries on the Laws of England, the Northwest Ordinance of 1787, Lincoln’s Gettysburg Address, and Martin Luther King, Jr.’s “I Have a Dream” speech. These diverse supplements are indispensible instruments for making sense of the written Constitution. When used correctly, these extra-textual aids support and enrich the written document without supplanting it not at all, by no manner of means and under no circumstances.Professor Akhil Reed Amar’s excellent book America’s Unwritten Constitution presents a bold new vision of the American constitutional system, showing how the complementary relationship between the Constitution’s written and unwritten components is one of America’s greatest and most enduring strengths.
The unwritten constitution are those processes of our government that are considered an essential part of the system yet they’re 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 aren’t.
Some examples and parts of the Unwritten Constitution may be listed for instance:
a) George Washington's Cabinet. The Constitution neither required nor suggested Washington do this. Since then every president has had one.
b) The Electoral College Promise. When the Electoral College originally voted it was on its own. No one would tell the college how to vote. The fact that the electoral college votes by state according to the majority of the popular vote of that state isn’t in the Constitution. In fact it’s merely a promise and historical precedent.
c) Political Parties - While today we rely on political parties to help us choose candidates for president and all other offices there’s no mention of this in the Constitution.
Those examples describe how they’ve influenced our understanding of the written Constitution.
Imagine what life would be like in America if these customs and precedents weren’t used. If the President didn’t 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 didn’t 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 has been created a Constitutional Amendment to make that portion of the unwritten Constitution into a part of the written Constitution.
Trabalho apresenado por Máriton Silva Lima, em maio de 2014, no término do curso Constitutional Law na plataforma de ensino Coursera, ministrado por Akhil Reed Amar, possuidor do título magno de Sterling Professor of Law and Political Science na Universidade de Yale.
