What it means to be part of the Unwritten Constitution

The following is the third and final assignment submitted in the Coursera Constitutional Law class taught by Professor Akhil Reed Amar of Yale University.

In the 1819 Supreme Court case McCulloch v Maryland, Chief Justice John Marshall wrote that “[the Constitution’s] nature ...requires that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves...We must never forget that it is a Constitution we are expounding.” This process of deducing and expounding has been guided by a set of supplementary texts, practices, and principles which have become part of an unwritten Constitution. But how does something become part of this tradition? To answer this question we must not only look at the existing components of the unwritten Constitution, we also have to understand the historical context in which they emerged.

A primary component of this tradition is the Declaration of Independence. Its themes of self-governance, equality, and individual liberty guide us in interpreting the terse text of the 1787 document. Looking at the Constitution in the context of the Declaration, we can better understand and interpret key parts of the Bill of Rights. For instance, the Third Amendment's protection against the quartering of soldiers in private homes is directly related to a grievance in the Declaration. Also, interpreting the Ninth Amendment’s vague language of “rights retained by the people” is more easily understood in this broader context. So, the Declaration of Independence provides the philosophical and historical foundations for interpreting the written Constitution.

With the philosophical foundations put in place, we can then turn to the process of ordainment and ratification as a second tool for expounding the written text. This process included a national discussion which saw the document come to life in debates across the states. The Constitution itself was printed in papers for all to read and discuss, but so were letters both in favor of and against ratification. This experience strengthened the bonds of a participatory democracy and showed the importance of both free speech and a free press.

While the bonds of democracy were strengthened during the nationwide debate, the democratic legitimacy of the Constitution was strengthened by the inclusiveness of its ratification process. When it was time for the people to select their convention delegates, states lowered or completely dropped property qualifications for voting - a radical concept for the time.

Both of these ideas - open debate and more inclusive voting - give us a context for better understanding the birth of the Constitution. They also start a tradition that is more fully realized over time under the lived Constitution.

Subsequent generations have added their voice to the unwritten Constitution through a set of emerging practices, or what Professor Akhil Reed Amar calls “hearing the people.” For instance, certain legal practices that are currently taken for granted were not common during the founding generation. Concepts such as testifying in court on one’s own behalf, proof beyond a reasonable doubt, and providing evidence for one’s defense have emerged over the past two centuries. This “lived Constitution” as Amar calls it, has given those generations that have followed the founders, the ability to mold the legal and political culture under which they have lived.

So, for something to be part of America’s unwritten Constitution, it must be part of an emerging and evolving legal, political, and cultural landscape. In short, it means being part of the process of expounding the written Constitution.

Constitutional Textualism

The following is an essay submitted for an assignment in the Coursera Constitutional Law class taught by Professor Akhil Reed Amar of Yale University.

Some constitutional scholars, who call themselves textualists, say that the only source of meaning in constitutional law should be the text of the Constitution itself. While being faithful to the text is important, there are instances that require us to look beyond strict textualism.

We can take the example of the Vice President and the question of who shall preside over his impeachment. A strict reading of the Constitution would indicate that the Vice President himself would preside. After all, he is the presiding officer of the Senate (where impeachment trials are held) and the text of the Constitution only allows for an exception to this rule when the President is impeached. Is it absurd to think that we would allow a man to preside over his own trial? It would seem so, but only by looking outside of the literal text can that absurdity be understood.

To look outside, however, we must first start by looking at the document itself more holistically. For instance, the preamble states that the Constitution was ordained, in part, to “establish Justice.” Is it just for a man to preside over his own trial? James Madison in Federalist #10 points out that “no man is allowed to be a judge in his own cause, because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity.” So, we can identify an obvious error in the document only by understanding the legal culture in which it was drafted.

To rectify this particular error, however, we can look to the text itself, but only by “reading between the lines,” as Professor Akhil Reed Amar would put it. Specifically, the Senate, with the power to “determine the Rules of its Proceedings,” could easily appoint some other party to preside over the Vice President’s impeachment.

Other than addressing obvious holes in the document, there are specific areas in the text that require interpretation beyond the literal reading. For instance, the Ninth Amendment states that “the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” This implies that the people have rights prior to the establishment of the Constitution. But how are we to determine these rights?

To address this problem, Professor Amar suggests that we take into account how Americans have “lived their lives in ordinary ways.” Put more broadly, we must look at the “lived Constitution.”

An example of the lived Constitution is the emergent norm of defendants testifying on their own behalf at their trial – something that was not allowed at the time the Constitution was written. Over time, however, this practice has become so commonplace that to strike it down as being unconstitutional would seem unjust.

We also have to look to a lived Constitution if we expect to address legal questions that involve modern technology. For instance, is a person’s cellphone protected from an unreasonable search under the 4th Amendment? (See U.S. v. Wurie.) Such devices today can contain a wealth of information about our lives, including financial information, personal contacts, schedules, etc. It would seem that they would be protected as personal papers and effects.

However, in Chimel v. California (1969) the Supreme Court ruled that police can search the immediate vicinity of a subject. Does this include a cellphone a subject may be carrying? If so, how much of the cellphone can be searched before such a search is considered unreasonable? Such questions need to be answered by interpreting not only the textual but also the lived Constitution.

An argument could be made that the issues listed here could be addressed by the amendment process of the Constitution. This, by its very nature, would be a more textualist approach. However, such an approach would, as John Marshall put it, “partake of the prolixity of a legal code,” and turn the Constitution into a document that “could scarcely be embraced by the human mind.” A better approach would seem to be to apply various principles and emergent norms to a more consistent, terse text. As Professor Amar would say, these principles and norms would help supplement, not supplant the text of the Constitution.

The Democratic Nature of the U.S. Constitution

The following is an essay submitted for an assignment in the Coursera Constitutional Law class taught by Professor Akhil Reed Amar of Yale University.

The U.S. Constitution opens with the statement “We the People,” announcing the most “democratic deed” in history. The democratic nature of the document is embodied in several aspects, the first of which was the ratification process.

While the document itself only required “Unanimous Consent” by state conventions, 8 of the 13 states lowered property restrictions to allow more people to vote for ratification convention delegates. This allowed for broader participation amongst the people. No other great democracy in history had allowed for such a broad level of participation in their constitution's ratification process. For instance, the Articles of Confederation, the governing document of the states prior to the Constitution, was sent out to be ratified strictly by the state legislatures - no special consideration was given to the citizens of the states. Also, the English constitution, such as it was, was never reduced to a single document on which the British people could vote. Only Massachusetts and New Hampshire had put their state constitutions to a vote by the people of the various townships (examples which set the stage for the U.S. Constitution).

There are also various provisions within the document itself that demonstrate democratic values. For instance, members of one house of the bicameral legislature, the House of Representatives, are elected biennially “by the People of the several States.” The Articles of Confederation, by contrast, had only one house and its members were chosen by the various state legislatures (except for Connecticut and Rhode Island where voters could weigh in on the selection of delegates).

The Constitution also requires the House of Representatives to change in size (initially) and apportionment based upon population growth. This would mean that the lower house would continually reflect the changing demographic shape of the people. This was not, however, a feature of the Articles of Confederation which limited states to between 2 and 7 delegates for its congress, the actual number being determined by the state legislature not by the size of the state's population. (The restriction on the ability of colonial assemblies to adjust in size based upon population shifts was actually one of the grievances against the English Crown listed in the Declaration of Independence.)

Other provisions of the Constitution that reflect its democratic nature concern qualifications for office. For one, no person can be excluded from office based upon his or her religious beliefs. As stated in Article VI, “no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.” In 1787, many (if not all) state governments required office holders to be Christians.

The Constitution does, however, put age restrictions on those seeking to hold office. House members must be at least 25 years old, senators must be at least 30, and the president must be at least 35. While this requirement seems like it restricts participation, it can be viewed as an egalitarian feature.

In many Old World societies the young scions of aristocracy would have an advantage from an early age because of their family heritage. Putting a minimum age requirement on office seekers levels the playing field for those without such a hereditary advantage by giving them time to make their own mark in society.

One final democratic feature of the Constitution is actually something that does not appear in the document itself. That is, there are no property qualifications for office holders. Men of little or no property could now hold any office within the government, something that was uncommon at the time of the Constitution’s ratification. For instance, the English House of Commons was made up of men of vast estates, and even the old Congress under the Articles of Confederation had members whose states imposed property qualifications on delegate selection.

While the Constitution’s democratic nature was unique at the time of its ratification, it must not be forgotten that many in society were still excluded from participation in the electoral and governing processes. Over time, however, the document has been expanded to better reflect the notion of “We the People.”