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The Status of Unwritten Constitutional Conventions in the United States
Abstract
Unwritten constitutional conventions have long been understood to be integral to the operation of Westminster parliamentary systems. The British legal scholar A.V. Dicey emphasized that "constitutional morality" supplemented legal rules in regulating the exercise of political power and limiting the discretion of government officials. The presence of a written constitution and judicially enforceable constitutional rules has sometimes been thought to render constitutional conventions superfluous, but these unwritten conventions have been common over the course of American history and have played an important role in defining the effective constitution of the polity. Constitutional law always threatens to displace constitutional morality, however, and unwritten conventions are often seen as in tension with the supremacy of the written text and the primacy of constitutional interpretation.
... Essas leis-quadros são chamadas, por lá, de "leis constitutivas" (Young, 2007) constitucional é ainda mais nítida naquelas matérias que se situam no âmbito da competência privativa da União, como os Códigos Civil, Penal, Processual Civil, Processual Penal e Eleitoral, a Consolidação das Leis do Trabalho, a Lei Orgânica da Magistratura, a. É curioso que, nesses domínios, as leis estabelecem um quadro normativo que se soma a -e, até certo ponto, mistura-se com -as normas constitucionais que visam disciplinar. Aliás, o próprio verbo empregado despropositadamente, "disciplinar", que revela a ambiguidade da atuação legislativa. ...
... A discussão entre convenções constitucionais e certas práticas relacionadas à separação dos poderes seria entre o mundo apenas da política e o mundo também do direito, e a introdução do conceito de convenção constitucional poderia atrapalhar. Muitos dos elementos citados ou seriam costumes constitucionais ou normas constitucionais implícitas reconhecidas (Bradley, 2017, p. 77;Elster, 2013;Vermeule, 2013;Whittington, 2013). consequência política, não prevista constitucionalmente, de voto de desconfiança (Guastini, 2001, p. 252). ...
... This question, according to Wilson, is incorrect because the relationship between law and convention is symbiotic rather than adversarial (Wilson, 1992). Furthermore, Whittington asserted that a convention fills the legal void left by written constitutions (Whittington, 2013). Because the requirements to become a Muslim President were debated in the 1945 Constitution, the Muslim President as a constitutional convention fills the void of aspirations through political morals without a formal formulation in the constitution. ...
Since Soekarno to Joko Widodo, all of Indonesia’s presidents have been Muslims. This practice is based on Dicey’s theory of constitutional conventions, i.e. rules of conduct that can persist over time and gradually gain persuasive power before becoming mandatory. Is this a reasonable assumption? Furthermore, should a Muslim President be a constitutional convention? This article employs socio-legal studies in the form of law in context, a historical approach to the constitution-making debate and a practical approach to Indonesian political reality. The study’s findings indicate that having a Muslim President as a constitutional convention is appropriate not only in terms of long-standing customs and practices but also as a resolution to the constitutional debate on Islam and the state, particularly the religious requirements for the President. As a constitutional convention, the Muslim President is not the law in the strict sense that it is binding and enforceable in court. Instead, it is a positive morality, ethics, and comprehension that serves as a moral guide for state officials and politicians. The Constitutional Convention in the form of a Muslim President, as well as the appointment of state offices taking religious proportionality into account, is an informal accommodation in the division of power in the design of the Indonesian constitutional system that takes into account the factors of Indonesia’s plural and potentially divided society. As a result, the convention improves Indonesia’s integration function.
... Not merely arbitrary rules of the game, they articulate the commitments undertaken by government officials. Governmental norms are a part of what some constitutional scholars call a nation's "unwritten constitution" (Amar 2012;Tribe 2008;Whittington 2013). They are conventions implicit in the practices that underwrite the formal constitution, rather than in its text or the jurisprudence interpreting it. ...
This article explains the nature and constitutional role of norms and explores ways to respond to the challenges they face, which threaten the viability of democracy. Constitutional norms are informal unwritten rules embedded in the normative practices of officials and political leaders. The effect of departures from constitutional norms depends on the seriousness with which participants take responsibility for their practice. The article distinguishes norm infringers, who depart from norms but do not intentionally challenge them; norm entrepreneurs, who challenge the norm in hopes of reforming or replacing it; and norm saboteurs, who seek to deal a deathblow to the norm or the constitutional system of which it is a part. Responses appropriate to each kind of deviation are considered.
... But, equally important for the functioning of our politeia are more specific conventions for behavior of the President, members of Congress, administrative officials, and courts, especially conventions regarding their relationships and relative independence. 13 Informal norms are essential to the operation of the Constitution in the United States. Some may actually fix, or help to fix, the precise meaning of formal provisions of the written Constitution, but typically they determine the textually unarticulated boundaries of appropriate or required behavior within the four corners of the text. ...
Many observers worry that democracies at home and abroad are failing. In “Democratic Failure” (this volume), Professor Huq argues that these failures have deeper and more persistent sources. Democracy and failure are born twins and travel through political history together, he argues; that failure is endemic to democracy—not a risk, but a certainty. In this essay, I seek to understand what this thesis could mean, exploring what I call various modalities of failure to which we may think democracy is vulnerable. I argue (a) that while there are a number of ways in which democracies fall short of our aspirations, these are either are not properly regarded as failures, or are not endemic to democracy; (b) that some disappointments are properly regarded as failures and endemic, but that efforts are possible to safeguard against them or repair damage caused by such failures; (c) that failings of democracy that should most concern us are ultimately our failures to do our part in maintaining the health of our democracy. It problem is not democracy that is failing, but our failing democracy.
... Although this might be perceived as a virtue in that it allows the law to adapt to changing conditions, it might also pose challenges for stability and predictability in the law. 309 Again, though, this is not a problem unique to this interpretive source; constitutional law can and does change, for example, through Supreme Court interpretations. At least with Supreme Court opinions, however, there is an understood public text that serves as a point of reference and potentially also as a stare decisis break on deviations. ...
The termination of U.S. treaties provides an especially rich example of how governmental practices can provide a "gloss" on the Constitution's separation of powers. The authority to terminate treaties is not addressed specifically in the constitutional text and instead has been worked out over time through political-branch practice. This practice, moreover, has developed largely without judicial review. Despite these features, Congress and the President-and the lawyers who advise them-have generally treated this issue as a matter of constitutional law rather than merely political happenstance. Importantly, the example of treaty termination illustrates not only how historical practice can inform constitutional understandings but also how these understandings can change. Whereas it was generally understood throughout the nineteenth century that the termination of treaties required congressional involvement, the consensus on this issue disappeared in the early parts of the twentieth century, and today it is widely (although not uniformly) accepted that presidents have a unilateral power of treaty termination. This shift in constitutional understandings did not occur overnight or in response to one particular episode but rather was the product of a long accretion of Executive Branch claims and practice in the face of congressional inaction. An examination of the way in which historical practice has shaped the constitutional debates and understandings concerning this issue can help shed light on some of the interpretive and normative challenges associated with a practice-based approach to the separation of powers.
Recent political developments worldwide have focused attention on the fraying of political norms, often understood as informal restraints on opportunistic behavior. We present a model to study how norms of restraint interact with institutional checks and balances. In the model, an election determines which party holds office in each period over an infinite horizon. Each period presents the majority party with an opportunity to modify a status quo policy. However, informal norms and formal institutional barriers limit its ability to do so by providing soft and hard constraints to policymaking, respectively. We show that political cooperation can be easier to sustain in political systems with fewer checks and balances, when political norms are sufficiently stringent. Under optimal norms, increasing polarization makes norms easier to uphold, while also reducing welfare. Finally, norms maintained by minority parties are less sustainable, and voter optimal norms require minority concessions to achieve greater electoral competitiveness.
The existence of constitutional conventions in Indonesia after the Amendment of the 1945 Constitution is problematic due to the abolition of the Explanation of the Constitution. Through a conceptual approach, this article answers its problem that constitutional conventions still exist because conventions are sub-systems that are always attached and present in the state constitutional system everywhere, including Indonesia. This article further discusses the development of constitutional conventions starting from the doctrine presented by Dicey in 1885 to current opinions by classifying the development of the term, source/rise, function, binding and obedience, mode of change, and the role of the court. From these developments, the understanding of constitutional conventions in Indonesia cannot be based on old doctrines or examples that tend to be out of date because conventions adapt like 'amoeba', not only in the context of carrying out the constitutional process but also filling in the gaps to complete the constitutional law supposed to be filled in by written law. Therefore, there are two important urgencies: first, academic urgency in the form of enrichment and deepening of conventions through teaching and research; second, the urgency of the constitutional practice of the Indonesian constitutional system, especially conventions that strengthen the principle of the constitution, democracy, and political accountability, both in executive institutions, the legislature, including the courts. The constitutional practice is not enough just to look at the written constitutional law, but also the principles, ethics, and morality accompanying the Indonesian constitutional system. Abstrak Eksistensi konvensi ketatanegaraan di Indonesia Pasca-Perubahan Konstitusi UUD 1945 kerap dipersoalkan sebagai dampak dihapuskannya bagian Penjelasan. Melalui pendekatan konseptual, artikel ini menjawab persoalan tersebut bahwa konvensi ketatanegaraan tetaplah eksis karena konvensi merupakan sub-sistem yang selalu melekat dan hadir pada sistem ketatanegaraan negara di mana-pun termasuk Indonesia. Artikel ini lebih jauh membahas perkembangan konvensi ketatanegaraan mulai dari doktrin yang disampaikan Dicey pada 1885 sampai dengan pendapat-pendapat kontemporer, dengan mengelompokkan pada perkembangan istilah, awal mula terbentuk, fungsi, daya ikat dan kepatuhan, cara perubahan, serta peranan pengadilan. Dari perkembangan tersebut, maka pemahaman terhadap konvensi ketatanegaraan di Indonesia tidak dapat disandarkan pada doktrin maupun contoh-contoh lama yang cenderung out of date, karena konvensi beradaptasi layaknya ‘amoeba’, tidak hanya dalam rangka menjalankan proses ketatanegaraan, namun juga mengisi kekosongan guna menyempurnakan hukum ketatanegaraan yang seharusnya diisi oleh hukum tertulis. Karena itu, terdapat dua urgensi penting: pertama urgensi akademik berupa pengayaan dan pendalaman konvensi melalui pengajaran dan penelitian; kedua, urgensi praktik penyelenggaraan ketatanegaraan Indonesia khususnya konvensi yang memperkuat sendi konstitusi, demokrasi dan akuntabilitas politik, baik pada lembaga ekskekutif, legislatif, termasuk pengadilan. Penyelenggaraan negara sejatinya tidak cukup hanya dengan melihat hukum ketatanegaraan tertulis semata, melainkan dibutuhkan juga prinsip, etika dan moralitas yang membersamai ketatanegaraan Indonesia.
Since the 1980s, congressional parties have traded increasingly narrow majorities, forgoing interparty compromise for unabashedly partisan lawmaking tactics. This includes “constitutional hardball,” in which lawmakers entrench their party position on high stakes votes by bending normal lawmaking procedure. Nevertheless, literature on the topic is new and descriptive (Balkin 2017, Fishkin and Pozen 2018, Pozen 2018), suggesting that hardball occurs briefly, during rare transformative moments (Tushnet 2003, Ackerman 1993, 1998, 2014). I argue that constitutional hardball is a durable, regular feature of congressional struggles over judicial nominations and voting rights. Specifically, I argue that given Article V’s high barriers to amendment, members of Congress unable to pass formal amendments have instead used hardball measures to achieve quasi-constitutional reform on judicial powers and voting rights. To test this claim, I offer case studies on the Enabling Act of 1889, House reapportionment after the 1920 Census, and contemporary Article V amendment proposals.
A partir do momento em que Donald Trump foi eleito presidente, críticos se angustiaram com o colapso das normas constitucionais. A história demonstra, no entanto, que as normas constitucionais estão perpetuamente em fluxo. A principal fonte de instabilidade não é que essas regras não-escritas possam ser destruídas por políticos que negam sua legitimidade, sua validade ou seu valor. Na verdade, a principal fonte de instabilidade é que as normas constitucionais podem ser decompostas- interpretadas dinamicamente e aplicadas de formas consideradas adequadas, mas que limitam sua capacidade de restringir a conduta de agentes do governo.Este artigo chama a atenção para essa instabilidade latente e, ao fazê-lo, começa a taxonomizar e teorizar a estrutura da mudança da norma constitucional. Exploramos alguns dos diferentes modos em que normas não-escritas colapsam em nosso sistema constitucional e os diferentes perigos e oportunidades associados a cada um deles. Além disso, argumentamos que, sob certas condições plausíveis, será mais preocupante quando as normas forem sutilmente revisadas do que quando forem abertamente desprezadas. Este argumento um tanto paradoxal sugere que muitos comentaristas têm julgado de forma equivocada nosso momento atual: o flagrante desafio do presidente Trump às normas pode não ser uma ameaça tão grande à nossa democracia constitucional como a deterioração mais complexa de normas em curso em outras instituições.
Práticas Parlamentares e Convenções Constitucionais Resumo: As práticas parlamentares desenvolvem um papel importante nas democracias modernas. Em suas diversas modalidades, praxe, precedente e convenções, elas são responsáveis pelo estabelecimento do equilíbrio dinâmico entre estabilidade e flexibilidade política e legislativa. Entre todas, as convenções constitucionais gozam de maior longevidade e grau de vinculação. Sua aplicação em Estados que adotam Constituições rígidas é polêmica. Entretanto, a literatura identifica sua presença em diversos deles, inclusive contra constitutionem. No Brasil, tanto as práticas em geral, quanto as convenções constitucionais em particular encontram especial obstáculo em se firmarem, em vista de da instabilidade política, da tendência à positivação das normas de costumes parlamentares e de arranjos partidários e interpoderes nem sempre inspirados no bem comum. Palavras-Chave: Convenções Constitucionais. Direito Parlamentar. Práticas Parlamentares. Práticas Políticas no Brasil. Parliamentary Practices and Constitutional Conventions Abstract: Parliamentary practices play a key role in modern democracies. In their various modalities, praxis, precedent and conventions, they are responsible for establishing the dynamic balance between political and legislative stability and flexibility. Among all, constitutional conventions enjoy greater longevity and degree of attachment. Its application in States that adopt rigid Constitutions is controversial. However, the literature identifies their presence in several of them, even contra constitutionem. In Brazil, both, practices in general and constitutional conventions, in particular are difficult task to be accomplished, in view of political instability, the tendency towards the transformation of parliamentary customs into legal rules, and of party and inter-power arrangements not always inspired by the common good. Keywords: Constitutional Conventions. Parliamentary Law. Parliamentary Practices. Political Practices in Brazil.
Self-help doctrines pervade the law. They regulate a legal subject’s attempts to cure or prevent a perceived wrong by her own action, rather than through a mediated process. In their most acute form, these doctrines allow subjects to take what international lawyers call countermeasures—measures that would be forbidden if not pursued for redressive ends. Countermeasures are inescapable and invaluable. They are also deeply concerning, prone to error and abuse and to escalating cycles of vengeance. Disciplining countermeasures becomes a central challenge for any legal regime that recognizes them.
This paper studies the problem of self-enforcing constitutions, addressing the question, how do some constitutions provide incentives for political officials to abide by the constraints announced in the constitution? To understand the mechanisms underlying successful constitutions, the paper begins by exploring a simple society facing the dilemma of policing the government: a sovereign, who controls the government, and two citizens. It then moves to a discussion of how constitutions are often formed out of crises, with some more detailed discussion of two main examples: England's Glorious Revolution of 1688 and the U.S. Constitution.
In Cooper v. Aaron, the Supreme Court asserted that its interpretations of the Constitution bind all officials, and that the obligation of nonjudicial officials to obey the Constitution is an obligation to obey the Constitution as interpreted by the Supreme Court. Since Cooper, however, a consensus has developed among scholars and officials that Cooper cannot be taken at face value, and that nonjudicial officials need not treat Supreme Court opinions as authoritative in order to comply with their obligation to the Constitution. In this Article, Professors Alexander and Schauer challenge this consensus, and offer an unqualified defense of Cooper and the judicial supremacy that it asserted. They argue that settlement of contested issues is a crucial component of constitutionalism, that this goal can be achieved only by having an authoritative interpreter whose interpretations bind all others, and that the Supreme Court can best serve this role. They further argue that constitutionalism entails obeying a constitution even when its directives seem mistaken, and that once we accept the obligation of officials to follow a mistaken constitutional directive, it is only a small step to expect them to follow a court decision that they believe similarly mistaken. Both constitutionalism itself and judicial supremacy embody the goal of providing settlement of issues as to which people disagree, and the coordination function of law in general and constitutionalism in particular yields not only an obligation to obey the law, but also an obligation to obey a single authoritative interpreter of the law.
In the 19th century what was meant by the term “constitution” was reasonably definite and clear. Paradoxically enough, if the word retained some ambiguity, this was because of the British constitution; that is, because the mother country of modern constitutionalism appeared to have an obscure constitution, or even—according to some of the standards that seemed very important elsewhere—no constitution at all.
The following essay elaborates the proposition that changing work relations has been a major problematic of American constitutional development. By work relations I refer to the hiring and firing, compensation, and discipline, of persons assigned to perform designated tasks in public and private settings. By “problematic” I have in mind cause and project, dynamic and rationale, of constitutional duration and change. By “constitutional development” I mean the authoritative reordering of government institutions or of the transactions between government and society.
Political scientists in the pluralist tradition disagree sharply with public and social choice theorists about the importance
of institutions and with William Riker in particular, who argues inLiberalism against Populism that the liberal institutions of indirect democracy ought to be preferred to those of populism. This essay reconsiders this
dispute in light of two ideas unavailable to Riker at the time. The first, offered by Russell Hardin, is that if we conceptualize
constitutions as coordinating devices rather than as social contracts, then we can develop a more satisfying view of the way
in which constitutions become self-enforcing. The second idea derives from the various applications of concepts such as the
uncovered set. Briefly, although institutions such as the direct election of president are subject to the usual instabilities
that concern social choice theorists, those instabilities do not imply that “anything can happen” —instead, final outcomes
will be constrained, where the severity of those constraints depends on institutional details. We maintain that these ideas
strengthen Riker's argument about the importance of such constitutional devices as the separation of powers, bicameralism,
the executive veto, and scheduled elections, as well as the view that federalism is an important component of the institutions
that stabilize the American political system. We conclude with the proposition that the American Civil War should not be regarded
as a constitutional failure, but rather as a success.