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Constitutional Norms Matter

Washington DC Capitol dome close up with American flag flying

American constitutionalism is famously about written rules. Our constitutions are filled with “thou shalt nots.” So much so that many unfortunately jump to the conclusion that the entire point of a constitution is to impose limiting rules. And certainly for several decades, the American experiment with written constitutions stood out for the ways in which it bound government officials with legally enforceable rules. (That experiment is less uniquely American now.) As Justice William Paterson observed shortly after the Founding, the constitution of England “lies entirely at the mercy of parliament: it bends to every governmental exigency; it varies and is blown about by every breeze of legislative humour or political caprice.” It was to avoid such problems that in America the constitution was “reduced to written exactitude and precision.”

While constitutional rules, and their interpretation and enforcement, are of course important, they do not exhaust our constitutional practice. Perhaps as important as written constitutional rules to the maintenance of a free republic are the unwritten constitutional norms, practices, and conventions that guide and constrain political behavior. Those unwritten constitutional norms are less transparent than the explicit words of the written constitutional text, and are less likely to feature in judicial opinions, but they are fundamental elements of our historical constitutional practice.

The British have a name for at least a subset of constitutional practices: constitutional conventions. The Victorian British legal scholar A.V. Dicey popularized the idea in the 1880s and 1890s, arguing that such informal and unwritten “understandings, habits, or practices” were crucial features of British constitutionalism and an essential means by which political power was kept in check. In the British case, the development of this constitutional morality, to use Dicey’s phrase, was particularly important for converting the British monarchy into an effectively republican system of government. Knowing what discretionary power was allowable under the constitutional rules was not enough. The preservation of democratic government required that governmental officials appreciate the duties and obligations that should guide their behavior and that often dictated that they not exercise power to the maximum limits allowed by law.

It was this evolving constitutional morality that dictated that the monarch must appoint the leader of the majority of the House of Commons as prime minister; that he or she must dismiss that prime minister when the majority party lost a parliamentary election; and that he or she must refrain from vetoing legislation passed by the Parliament.

Constitutional conventions constrained the behavior of elected officials as much as the crown. Everyone in the political system benefited from the mutual insistence that everyone play by the constitutional rules, as those rules were refined and elaborated through informal norms. Political life would become much more nasty and brutish, and potentially much less democratic, if those conventions were flouted and routine violation of those conventions were tolerated.

I have argued elsewhere that the idea of constitutional conventions is just as relevant in the American context as in the British. I’m certainly not the first to notice this. Dicey himself suggested that conventions in this British sense existed in the United States. In this connection, there is a distinction to be made between constitutional interpretation and constitutional construction. Interpretation is focused on faithfully identifying the rules laid down in the fundamental law, often for the sake of judicial enforcement of those rules. Constitutional construction is concerned with how constitutional meaning and practices are developed in the interstices of the constitutional text, where discoverable meaning has run out. Within these “construction zones,” as Larry Solum has called them, the indeterminate text is rendered determinate through the creative action of government officials and political actors, and political discretion is hemmed in by the generation of authoritative norms of political behavior.

Part of the purpose of the text of the U.S. Constitution is to assign discretionary power over specified subjects to designated government officials. Such discretion may simply go unchecked by constitutional rules and norms, but it might also be circumscribed by evolving expectations on how such power is to be properly used. Constitutional maintenance may well require that political behavior within the constitutional rules be further constrained by precepts that help preserve the rules. Questions of constitutional propriety arise within the boundaries of constitutional law. As the Gilded Age jurist Thomas Cooley pointed out, a more “complete and accurate” definition of a constitution would be: “that body of rules and maxims in accordance with which the powers of sovereignty are habitually exercised.”

The classic example provided in the older literature on American constitutional conventions was the tradition of the two-term presidency. Dicey pointed to the tacit term limit on Presidents of the United States as evidence of the kind of informal constitutional practice that was central to the British system of government. American commentators at the turn of the century readily agreed that George Washington’s voluntarily stepping aside as President at the end of two terms had hardened into a firm normative constraint. Early Presidents like Thomas Jefferson and James Madison had appreciated its value in a republic and chose to follow suit, restraining their own ambitions in order to cement a norm against elected monarchs.

The significance of the two-term President was not lost on the fire-eating Virginian Nathaniel Beverley Tucker, who wrote an antebellum novel imagining the eventual circumstances of Southern secession. In The Partisan Leader (1836), Tucker’s device for illustrating an American government that had abandoned its republican ideals was the image of a perpetually reelected President Martin Van Buren, who observed the forms of democracy but was no longer bound by its substance. When supporters of an actual President, Ulysses Grant, explored the possibility of a third term for the war hero, other Republicans pushed back and bolstered their case for following the norm by stressing how unseemly it would be for Grant to try to outlast General Washington in the White House.

But by the Progressive Era, commentators began to worry about the vibrancy of the two-term tradition, and saw in the mixed reaction to Theodore Roosevelt’s effort to serve a third term a harbinger of some future incumbent’s deciding to break the two-term barrier. If that were to ever happen, one prominent legal scholar argued, the question would have to be settled by the adoption of a written constitutional amendment to transform the unwritten norm into a formal rule.

The Electoral College offers another standard example of an American constitutional convention in practice. The written terms of the Constitution left the state legislatures free to choose presidential electors however they wished, and likewise left the electors themselves perfectly free to cast their ballots for the person that they in their own individual judgements thought might best execute the powers of that office.

American democratic sensibilities swiftly overtook the formal institution and imposed a series of informal norms designed to tie the hands of those exercising seemingly discretionary power within the rules established by the U.S. Constitution. State legislatures were no longer to exercise their own discretion in choosing presidential electors but were effectively obliged to vest that authority in the people themselves. Likewise presidential electors were no longer to exercise independent judgment in casting their ballots, but were effectively obliged to pledge themselves to a particular candidate so that the voters could use the selection of the elector as a mere instrument for choosing a President by popular vote.

Such conventions made the constitutional system more democratic than it might otherwise be, and an observer who did not understand those conventions did not understand how the Electoral College worked in practice. As we saw in Election 2016, the so-called “Hamilton Electors” thought they were giving a civics lesson by appealing back to the formal rules of the Constitution and asserting that the electors should make an independent determination of whether some unnamed individual, perhaps John Kasich or Colin Powell, might make the best President. In fact, they were just exposing their own civics deficiencies and had misunderstood their place as electors within the modern American constitutional order.

It is surely the case that if a sufficient number of faithless electors were to cast a majority of the electoral votes for a candidate who had not won those votes in the general election, the ballots of the Electoral College would themselves be ignored (or fudged, as when some states in 2016 refused to allow electors to cast ballots for anyone other than their pledged candidate), which would be followed, in due course, by adoption of a constitutional amendment remaking the formal constitutional rules to more closely match the informal constitutional practice.

As these examples indicate, constitutional norms are real, but they are not impervious to violation or change. Partisanship and self-interest can generate significant political pressures that inherited constitutional norms might struggle to contain. When political elites are no longer willing to defend constitutional norms and are unable or unwilling to punish those who violate them, then the norms will eventually collapse. As Jacob Levy has recently pointed out, nihilism is a much greater threat to political freedom than hypocrisy. It matters far less who is responsible for bending and breaking constitutional norms in the first place than that we shore up those norms for the future.

There may be occasions when it is justifiable to play “constitutional hardball” or provoke a constitutional crisis in order to overthrow an unjust status quo and move toward a more just political equilibrium. But more often it is short-sighted self-interest that leads political actors to want to kick over any obstruction in their path to satisfy their immediate political goals. We should be very careful before we toss aside constitutional traditions that have long served us well, and we should take care to appreciate the delicate web of expectations, habits, and norms that make our constitutional system workable.

Reader Discussion

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on February 16, 2017 at 09:38:16 am
Image of Paul Binotto
Paul Binotto
on February 16, 2017 at 10:49:41 am

Great essay!

Some thoughts:

"…there is a distinction to be made between constitutional interpretation and constitutional construction. Interpretation is focused on faithfully identifying the rules laid down in the fundamental law, often for the sake of judicial enforcement of those rules. Constitutional construction is concerned with how constitutional meaning and practices are developed in the interstices of the constitutional text, where discoverable meaning has run out. Within these “construction zones,” as Larry Solum has called them, the indeterminate text is rendered determinate through the creative action of government officials and political actors, and political discretion is hemmed in by the generation of authoritative norms of political behavior”

“As the Gilded Age jurist Thomas Cooley pointed out, a more “complete and accurate” definition of a constitution would be: “that body of rules and maxims in accordance with which the powers of sovereignty are habitually exercised.”

This construction by the essayist provides us with a rather refined lens for reviewing both how (and when) constitutional norms are, and ought to be observed (def. to show regard for by some appropriate procedure, ceremony).

Another writer has suggested that politics is downstream from culture. This is a Burkean viewpoint and one which held sway, and, indeed, was respected for several centuries. There were cultural norms that held governance (and culture itself) in check. There was, as one writer called it, a Common Mind – one readily apprehendable to all members of the polity and one respected and observed by the great preponderance of the community. In this realm, “politics” did indeed follow the cultural flow of the community at large.

It may be confidently argued that the Founders of this Republic were following the cultural flow of the time. Reflecting the cultural (and legal) norms of their British forebears, prizing a certain conception of liberty while recognizing the obligations inherent therein, they crafted a theory and structure of governance most “happily” suited to their ends.

The ”indeterminate” areas of text within their grand Constitution were both known to them and, to their minds, capable of resolution by reference to the Common Mind (culture, practice, common law) of the time. There was an expectation, as with Burke, that change would occur AND that the pace and nature of that change would be left to the good sense of the people acting under the Common Mind.

Thus, the “construction zone” would not develop into a runaway engine of unwanted / unwarranted social change. This did seem to work for a considerable period of time.

Should, however, the Founders have recognized that a certain danger lurked in those “indeterminate” areas, i.e., in the construction zone. Perhaps, yes? After all, was not their own struggle often viewed as the result of a Parliament that had disregarded its own cultural restrictions on *it’s* “construction zone” and this was reflected in the call by the Colonists for “respect for the rights of Englishmen”.

It is difficult to answer the question as to the Founders ability / desire to perceive future threats emanating from the construction zone. It is, however, clear that those threats arose and that, also, those threats currently plague us.

How did this come to be?
Briefly, with the advent of the European inspired Progressive School of Thought / Politics wherein a core of experts would be said to be better able to shape and perfect the “peoples happiness.” (I’ll skip the specifics). No longer would the Common Mind work to ameliorate the inevitable Oakeshottian *collisions* consequent upon human intercourse. No, these appointed experts would divine, negotiate and navigate not just the downward stream (politics) but also the headwaters (culture). (Again, time runs short, I’ll skip details).

Effectively, what our Progressive governance, and clearly, indeed, most notably, the modern jurist is to be included in this, has done is to meld the headwaters with the finer downstream flows. The result of this is a cauldron of roiling water, unconstrained by any moderating breakwaters, rushing on, ever on, while surely eroding the once sturdy banks of the cultural stream.

This has been done by purposively ignoring / disregarding “that body of rules and maxims in accordance with which the powers of sovereignty are habitually exercised.

Summing up: No theory of interpretation, construction, etc. (originalism, textualism, *engagement*) will provide for effective, proper and long term “happiness” of the Republic unless, and until, it rediscovers / respects the Common Mind. In short, I submit that the construction zone of interpretation / jurisprudence was / is nothing more than a mechanism for the attenuating influence upon passions / factions to be exercised by the people – and was so intended by the Founders.

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gabe
on February 16, 2017 at 12:44:02 pm

Excellent addendum to the essay, Mr. Gabe. Thoughts on two of your assertions:

1)"This has been done by purposively ignoring / disregarding “that body of rules and maxims in accordance with which the powers of sovereignty are habitually exercised"

- Quite so, and I would suggest that little else is to be concluded by this statement, than that it is not in order to preserve the union, or in order to form a more perfected union within its existing framework, but to concertedly undermine and erode the union, in order to replace the union with a Progressive one very different than intended by the Founders.

2)"(T)hey crafted a theory and structure of governance most “happily” suited to their ends" :

- Additionally, Mr. John S. Schmeeckle , in his paper, (linked by him herein under another recent post), "Prelude to the Declaration of Independence: The Congressional Resolution of May 10 and 15, 1776" makes a very good argument in support what the Founders understood this Happiness in their ends to represent, and what of government's sole role to exist, when he cites John Adams' words from, "Thoughts on Government" , as Adams, "paraphrase of Fortescue’s argument that virtue is an essential prerequisite for happiness: “Upon this point all speculative politicians will agree, that the happiness of society is the end of government, as all divines and moral philosophers will agree that the happiness of the individual is the end of man. . . ." ("Prelude to the Declaration of Independence: The Congressional Resolution of May 10 and 15, 1776", by John S. Schmeeckle, page 14 -15). Links to paper available in comment section of "Gorsuch Nomination: Potentially the Best News for Originalism since 1987" Feb. 5, 2017 post herein by John O. McGinnis- See more at: http://www.libertylawsite.org/2017/02/05/gorsuch-nomination-the-bests-news-for-originalism-since-1987/#comments

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Paul Binotto
on February 16, 2017 at 12:50:44 pm

Paul:

Quite right and glad you added the comment on "virtue" as it appears that I neglected to mention it.

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gabe
on February 16, 2017 at 15:32:39 pm

Mr. Gabe,

As a long-time follower of your comment trail, I can rightly attest, that "virtue" is always implicitly apparent in the direction of the path, even though it may not be explicitly engraved into each of the guideposts.

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Paul Binotto
on February 16, 2017 at 16:22:15 pm

"As we saw in Election 2016, the so-called “Hamilton Electors” thought they were giving a civics lesson by appealing back to the formal rules of the Constitution and asserting that the electors should make an independent determination of whether some unnamed individual, perhaps John Kasich or Colin Powell, might make the best President. In fact, they were just exposing their own civics deficiencies and had misunderstood their place as electors within the modern American constitutional order."

Eesh. No.

The essay is a piece of sophistry that attempts to rationalize the failing and overly democratic modernization of our constitutional order.

The Hamilton Electors were quite right. They were under no national obligation to vote a certain way. That was the original intention and design of the electoral process. The author implies that the unwritten constitution, which is a very real thing, supersedes the original intention and design. He claims that the public has deigned that the electors must vote according to the demands of the majority of the public, not according to the conscience of our wisest representatives. As long as they voted according to their state laws they acted appropriate with respect to the US Constitution and our unwritten constitution.

I would much rather read a discussion about the absurdity of the modern electoral system with respect to its original intention. We are a republic, not a democracy. We operate by representation, not by the direction of the statistically average voter. Said voter has an IQ of about 100, has little secondary education, and is generally too involved in just making a living to dig deeply into politics. That's why we are meant to be a republic of conscience exercised by representatives, not a democracy led by those who can best sway the voters for a short period of time.

The civic deficiencies and misunderstandings lie elsewhere.

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Scott Amorian
on February 16, 2017 at 19:39:59 pm

"The author implies that the unwritten constitution, which is a very real thing, supersedes the original intention and design. "

I think you may read too much into the essayist's comment. Far from *superseding* the constitution, he is asserting that the unwritten one does and ought to constrain the excesses of governmental actors.

To accept the meaning you impute to the essayist would lead us to the justification for the "living constitution"

It is this that I, for one, am most concerned about. It is this failure to recognize the constraints upon power that the "unwritten constitution", or as I refer to it, the Common Mind, that has caused us to break through any constraints upon government that the founders envisioned. This trend has appreciably accelerated in the past 80 years or so.

Oddly enough, it is a failing to which even libertarians have fallen victim, although to be fair, it may be said to which they MAY fall victim. *Engagement* has an underpinning, if improperly approached, of disregard for the Common Mind. Thus, the creation of all manner of new rights without an appreciation of the concomitant obligations which actually secure those and other rights. Where does it stop?

No, adherence to the unwritten constitution is (was?) the major bulwark against the expansion and overreach of government actors. It is not the cause but rather the victim of expanded government.

That being said, even Burke would allow (and frankly did) for change over time; but Burkean change is far different from the rather "purposive" and deliberate change initiated by our "wisest" representatives, who are now to be found, if one believes the statists among us, in the Executive Agencies and the Judiciary. As for the electors, over time, change has come to how their roles and responsibilities are perceived AND discharged. So long as we still elect "Representatives" who themselves are not *bound* to vote in lock step with their constituents, and we do not have a plebiscitatory democracy, we may still be said to have a Republic.

I, for one, would expect, and want, our electors to vote as the people have voted in each State for their elected "representative" Executive. Were we to not require that, then we would simply have a situation akin to the Black Robes, wherein some small number of our "wisest" souls determine how we shall live and WHO we are.

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gabe
on February 16, 2017 at 19:50:58 pm

"Said voter has an IQ of about 100, has little secondary education, and is generally too involved in just making a living to dig deeply into politics" - A Badge of Honor in my book! Maybe so, BUT they possess a hundred times more "Horse Sense" as we used to call it in my neck of the woods, than the so-called educated "progressive" elites telling them what is best for them - enough to know which way the smoke riding the wind is blowing and when they are having that smoke blown-up their posterior regions by persons with seemingly as much respect for them as might be inferred to be regarded them in this characterization.

Didn't the 2016 election teach this lesson if nothing else?

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Paul Binotto
on February 18, 2017 at 04:23:36 am

"We are a republic, not a democracy."
Soon as I see those words I know I'm dealing with someone with a limited dogmatic understanding of the US or someone who is dishonest about there understanding (I include the latter because so many who use that phrase make clear in other posts that they consider the US a democracy and scream loudly if they think their political enemies are been undemocratic).

The US is a democratic Republic. The terms Democratic and Republic are not exclusive. It's like saying clothing can't be both red and trousers.

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Image of Stephen Ede
Stephen Ede
on February 19, 2017 at 11:27:15 am

Since the maintenance of constitutional conventions would fall under the purview of Conservatism by definition, it is no wonder that Progressives are usually the ones to attack them, as exemplified by by both Roosevelts and Harry Reid.

Accumulated and proven wisdom is not a virtue for the Left.

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Image of Joe
Joe
on May 22, 2017 at 12:00:44 pm

Without denigrating the scholarship or the comments:

Over (at least) the past70 years we have been observing increasing social (and therefore political) trends to convert everything, every relationship, every facility into means to ends.

Here we have a procedure in the provisions for the conditions of the Executive Office, established initially on the experience of the need to provide means for certain ends.

And now we are treated to consider diverse ends (formed for diverse objectives) for which these means may be deployed - something in the nature of "off label" uses of prescriptive medicines.

But, that is what can happen when a society becomes "sick," and searches for remedies.

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