The discussion has continued at Volokh Conspiracy:


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 Of course these statutes can be repealed, but doing so would be seen by a lot of people as “unconstitutional.”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.

More after the cut.





“Nobody has a legitimate reason to fear a faithful interpretation of the Constitution, and nobody has any legitimate reason to fear effective and complete protection of civil rights." - Alan Gura