Political Norms and the Unwritten Constitution

In a post commenting on recent guest-blogger Akhil Amar’s book The Unwritten Constitution, Gerard Magliocca suggests that the scope of the unwritten Constitution is broader than the book states:

[M]y main criticism of the book is that I don’t like Amar’s definition of the unwritten Constitution. What do I mean by that? I mean that his working assumption seems to be that something violates the unwritten Constitution only if a court or the body charged with making the call (say, the Senate during an impeachment trial) would (or should) say the act is unconstitutional. This, though, strikes me as incomplete.

Here’s one example. Amar claims that the current size of the Supreme Court–nine Justices–was not settled by the failure of Franklin Roosevelt’s Court-packing plan in 1937. He points out (correctly) that Congress can still change the size of the Court for some good-government reason. The problem is that most lawyers would view such a change as deeply wrong no matter what the explanation is. (Indeed, I would submit that this is far more settled than other constitutional rules that Amar defends in the book.)

Amar’s approach would also deny unwritten constitutional status to various canonical statutes. Nothing in the Constitution mandates the existence of lower federal courts–the Judiciary Act of 1789 does that. Nothing requires that various segments of American life be desegregated–the Civil Rights Act of 1964 does that. And so on. Of course these statutes can be repealed, but doing so would be seen by a lot of people as “unconstitutional.” There are, in other words, unwritten political limitations on Congress.

It seems to me that Gerard (and possibly also Amar; I won’t know for sure until I finish the hefty book myself), conflates the idea of the unwritten Constitution with deeply rooted political norms that don’t rise to constitutional status. Any political system – even one with a written Constitution – has some deeply rooted nonconstitutional norms that political leaders violate only at great cost. The examples that Gerard gives are all among the deeply rooted norms of American politics. Such norms are extremely important. In some cases, the political system could not function effectively without them. But that does not mean that they rise to constitutional status.

The difference is more than semantic. 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.

In practice, of course, a powerful and persistent political majority can undermine written constitutional limitations on power even without a formal amendment. That has happened several times in our history, such as in the 1930s. But it probably requires a broader consensus than the reversal of a mere political norm. And even after it has happened, substantial dissenting movements can still argue that the change was illegitimate because it violated the written Constitution (as, for example, many still criticize the Supreme Court’s decisions expanding federal power under the Commerce Clause since the 1930s). By contrast, few argue that it was illegitimate to change nineteenth century political norms, such as the “spoils system” or the custom of rotation in office that prevented congressmen from serving more than a few terms in a row.

I agree, of course, that some genuinely constitutional limitations on government power may be unwritten; for example, some may be inevitable outgrowths of of the structural logic of the Constitution. And if you are an originalist, you must be open to the possibility that part of the original meaning of a text goes beyond its literal words. But there are nonetheless many deeply rooted political norms that are not constitutional in nature. Gerard’s examples all fit that category.

UPDATE: Gerard responds to this post here:

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.

Citizens United is indeed shaky right now, because it is backed only by a narrow 5-4 Supreme Court majority that might well change in the next few years. However, there is still a difference between a norm that can be changed through the regular political process and one that can only be changed through a constitutional amendment or by a relatively independent and politically insulated court choosing to reverse its decision. Moreover, while Citizens United is, right now, more likely to be reversed than the Civil Rights Act of 1964, it does not follow that it is inherently easier to get rid of. As I noted in my original post, the Civil Right Act could be abolished if an ordinary political majority wanted to get rid of it. Citizens United and other court decisions are harder to reverse in that way. If the Civil Rights Act is relatively immune to rollback, it is because of its widespread popularity, not because it has constitutional status. Whether a rule is constitutional or not is just one of the factors that influence how hard it is to change; popularity is one of the others. But a constitutional rule is, on average, more difficult to reverse than a political norm that that has the same level of popularity.

As for the British political system, it may well be that what is often called the “British constitution” is, in my terminology, just a system of deeply rooted norms. Not all governments have constitutions. Indeed, historically, the majority did not.

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