America's Unwritten Constitution: The Precedents and Principles We Live By (2 page)

But America’s revolutionary break with the British model was only partial, not total. In several ways, the terse text has always pointed beyond itself, inviting readers to fill in its gaps by consulting extratextual sources
such as judicial opinions, executive practices, legislative enactments, and American traditions. America’s written Constitution thus bids us to heed her unwritten Constitution, which in turn refers us back, in various ways, to its written counterpart. Like the Chinese symbols yin and yang, America’s written Constitution and America’s unwritten Constitution form two halves of one whole, with each half gesturing toward the other.

Equipped with this comprehensive understanding of the American constitutional system, we can begin to bridge the deep divide in our current constitutional culture. Today, some judges, politicians, pundits, and scholars plant their flag on the high ground of constitutional text and original intent, while others proudly unfurl the banner of a “Living Constitution.” Too often, each side shouts past the other, and both sides overlook various ways in which the text itself, when properly approached, invites recourse to certain nontextual—unwritten—principles and practices. We are all textualists; we are all living constitutionalists.

TWO POINTS ABOUT THIS BOOK’S
scope and structure deserve emphasis at the outset.

First, although this book uses legal materials and legal reasoning to show the reader why various constitutional interpretations are legally correct or incorrect, nonlawyers should not be daunted. Nothing here requires any special legal training or background. This is a book for general-interest readers who care about the Constitution, whether they be schoolteachers, college students, journalists, political activists, or merely civic-minded citizens. Whenever actual judicial cases, congressional statutes, presidential proclamations, state laws, House and Senate rules, and the like are discussed, I provide enough background to enable the reader to grasp the relevant issues.

At various points, I posit hypothetical fact patterns to help the reader see the proper shape of a given unwritten constitutional rule. Hypotheticals are the grist of legal reasoning and form an implicit or explicit part of virtually every legal case ever decided and every legal issue ever analyzed outside a courtroom. Even if a judge is sure that the plaintiff in the case at hand—call it case A—deserves to win, the judge must decide how broadly or narrowly to rule. If she adopts a broad rule, plaintiffs in later cases B
and C will also deserve to win under the sweeping logic she announces. By contrast, a narrow rule in case A might mean that plaintiffs in later cases B and C will likely or surely lose. When case A is decided, the distinct fact patterns of cases B and C may not yet have arisen. Perhaps these fact patterns will never arise. But precisely because cases B and C could in principle later materialize, a good judge will think carefully about these now-hypothetical cases in crafting the proper rule for the case at hand—case A.

For similar reasons, I shall routinely illustrate the proper scope of an unwritten constitutional principle by asking the reader to ponder a fact pattern that has yet to arise and that perhaps may never arise. Often these hypotheticals are closely related to fact patterns that have already occurred and cases that have already been decided. The hypothetical merely presents the relevant issue in a cleaner way that clarifies analysis. The hypotheticals showcased in this book are thus not the stuff of science fiction. They do not involve Martian invasions or antigravity pills. They aim not to bend the reader’s mind, but to sharpen it. Specifically, several of these hypotheticals are designed to show the reader that we today can sometimes be quite sure that a future case must and will be decided a particular way, even though the text of the Constitution does not provide an explicit answer, and even though no identical court case has yet been decided. Nevertheless, we can be confident of the right answer to this not-yet-decided case because there truly is an unwritten Constitution alongside the written Constitution—and because there is a great deal more to this unwritten Constitution than merely the sum total of all previously decided judicial cases.

Second, this book is about method as well as substance. Before we can confidently say
what
government officialdom may and may not properly do under various unwritten constitutional rules, we must figure out
how
to find these unwritten rules. Fortunately, there are a handful of interpretative tools—constitutional compasses and lenses—that can be used to locate and bring into sharp focus the unwritten substantive do’s and don’ts. The written Constitution does not enumerate these methodological tools. Thus, these interpretive instruments are themselves components of America’s unwritten Constitution.

Indeed, these lenses and compasses are perhaps the most important components of America’s unwritten Constitution, and they form the
organizational spine of this book. Fair warning: This book is not arranged by substantive subject matter. I do not, for example, devote one chapter to religious freedom, another to separation of powers, and yet another to voting rights. Rather, each chapter opens with a brief explanation of a particular way of approaching America’s unwritten Constitution—using a distinct
methodological
tool—and then proceeds to offer a few illustrative (but not exhaustive) examples of the specific unwritten substantive rules that this particular methodological tool helps us find and define.

In actual constitutional practice, faithful interpreters make use of multiple tools to think about any given constitutional issue. The distinct methodological instruments thus work together, in much the same way that distinct chapters work together to form a book and distinct vertebrae work together to form a spine.

Consider, for example, America’s preeminent right, the freedom of speech. Textually, this freedom appears in the First Amendment, but if everything depended solely on this explicit patch of constitutional text, which became part of the Constitution in 1791, then the First Congress in 1789 and 1790 would have been free to pass censorship laws had it so chosen. But surely the First Congress had no such power. And surely states have never had proper authority to shut down political discourse, even though the First Amendment does not expressly limit states. The robust, wide-open, and uninhibited freedom of American citizens to express their political opinions is a basic feature of America’s unwritten Constitution that predates and outshines the First Amendment. Or so I claim.

I do not prove this specific claim in a single chapter devoted solely to free speech. Rather, free speech pops up at several points in the book, each time in connection with a different method for finding America’s unwritten Constitution. In
Chapter 1
, I invite readers to read between the lines of the Constitution—to see what principles are implicit in the document, read as a whole, even if these principles are nowhere explicitly stated in any specific clause. In the middle of this chapter I show that free speech is one implicit principle among many. In
Chapter 2
, I invite readers to pursue a wholly different methodological line of inquiry—to look away from the text altogether, if only momentarily, and instead ponder the specific historical procedures and protocols by which the Constitution was in fact
enacted. It turns out that this method gives us a second and distinct reason for believing that an unwritten constitutional right of free speech preceded and surpassed the First Amendment.
Chapter 3
offers a third way of thinking about unwritten constitutionalism, focusing on the actual rights that ordinary twenty-first-century Americans embody and embrace in their daily lives. One of those rights is the freedom of speech. Further support for a robust right of free speech appears when we take yet another methodological tack by reading the Constitution through the lens of modern case law—the approach showcased in
Chapter 4
. Later chapters illustrate still more ways to find the unwritten Constitution, and in these chapters free speech occasionally pops up yet again.

ULTIMATELY, THIS BOOK EXPLAINS NOT
merely what America’s Constitution, written and unwritten, says on a wide variety of topics, but, even more critically, how to make proper constitutional arguments—how to think constitutional law and how to do constitutional law. Some of these ways of thinking and doing are well understood today; others are not. Thus this book offers a new vision of the nature of constitutional interpretation—a new vision, that is, of the tools and techniques for going beyond the written Constitution while remaining faithful to it.

Although this book makes no claim to encompass every aspect of America’s unwritten Constitution, the chapters that follow seek to illuminate many of the best avenues for understanding this expansive and sometimes elusive entity. Alongside my book
America’s Constitution: A Biography
, which mapped the written Constitution in considerable detail, the current volume aims to offer readers a vivid and panoramic account of the American constitutional experience.

AMERICA’S

UNWRITTEN

CONSTITUTION

T
HE
I
MPEACHMENT
T
RIAL
OF A
NDREW
J
OHNSON
(1868).

The United States Senate deciding the fate of President Andrew Johnson, in a trial presided over by Chief Justice Salmon P. Chase.

O
N THE AFTERNOON OF MARCH
5, 1868, as the nation’s capital saw its first fair day in nearly a month, the Senate galleries filled to capacity. According to one press account, the ladies in the audience sparkled “with all the bright colors of brilliant toilettes.” Sitting in the presiding officer’s chair, Chief Justice Salmon P. Chase solemnly summoned each senator to step forward and take an oath to do “impartial justice.”
¹

Usually, the chief justice does not chair Senate proceedings. Typically, senators take no special judicial oath. On many a day, elegant spectators do not throng the Capitol galleries. But this was no ordinary day. For the first time in history, the Senate was convening as a court of presidential impeachment. Andrew Johnson, the seventeenth president of the United States, stood formally accused of high crimes and misdemeanors warranting his ouster from office.
²

No one knew who would prevail in the days ahead. An overwhelming majority of the House of Representatives had put forth eleven articles of impeachment, indicting Johnson for his wild anticongressional rhetoric and fierce defiance of congressional legislation—but conviction would require a two-thirds vote in the Senate. Johnson had many allies in the upper chamber. But did he have enough?

One by one, senators approached the chair and were sworn in. Rhode Island’s Henry B. Anthony went first, followed by Delaware’s James A. Bayard Jr. In 1801, Congressman James A. Bayard Sr. had brokered a deal making Thomas Jefferson president. Back then, Bayard Jr. had been an infant. Now he would have his own chance to shape a president’s fate.

As Bayard Jr. took his oath, some in the chamber likely thought back to the legendary Bayard-Jefferson affair. They may have also recalled that Jefferson, as the vice president of the United States from 1797 to 1801, had himself presided over the Senate, thus occupying the very chair now filled by Chase. Johnson, too, had once sat in this seat, as Abraham Lincoln’s vice president in early 1865. Did any of these stray thoughts cross Chase’s mind as he sat in the Jefferson/Johnson chair? Did it further cross Chase’s mind that, if he played his part well in the impeachment trial, he might himself
win the presidency in November, and thereafter fill an even more powerful chair once occupied by Jefferson and Johnson?

Chase continued to go down the alphabet. Several dozen senators—including Thomas Hendricks, Reverdy Johnson (no relation to Andrew), John Sherman, William Sprague (Chase’s own son-in-law), Charles Sumner, and Peter Van Winkle—stepped forward and took their judicial oaths. Then came the moment many had been waiting for: The secretary called the name of Ohio’s senior senator, Benjamin Franklin Wade, the official Senate president pro tempore. As Wade approached the chair, Hendricks—the senior senator from Indiana and a supporter of President Johnson—rose to his feet to object. The crowd hushed.

It took Hendricks less than two minutes to explain why Wade could not properly take the requisite oath. Under the presidential-succession statute then on the books, the Senate president pro tempore stood next in line after Johnson. (No vice president existed in 1868. When Lincoln was killed at war’s end, Vice President Johnson had become President Johnson, and his old seat had thereafter remained empty.) Thus, were the Senate to convict Johnson, Wade would move into the White House. With so much to gain from a guilty verdict, Wade should not sit in judgment over Johnson. “I submit,” intoned Hendricks, that “he [Wade] is not competent to sit as a member of the court.”