The Constitution versus the "constitution"
/Americans usually talk about “the Constitution” with a definite article and a capitol “C,” as if there is only one thing called the Constitution and everybody knows exactly what it is. But that is narrow and parochial. Also, it is inaccurate.
To begin with , the United States Constitution isn’t the only constitution. It isn’t even the only constitution in the US. Every state has a constitution. Almost every other country in the world has a constitution, and many of them call their constitution, “the Constitution.”
The word constitution simply means how something is made – what’s in it and how it works. Concrete is constituted from cement, water and sand. Birthday cake is constituted with water, flour, sugar and eggs. Anything that exists has a constitution.
The word dates back at least 600 years. Its earliest use meant "the action of establishing or creating” something. Other early uses of the word described "physical health, strength and vigor of the body” and “the way in which a thing is constituted."
The sense of the word meaning “the rules or organization of a state or nation" has been understood for 400 years or more. And in that sense, every nation has a constitution even if it isn’t written. England’s constitution has never been written down, yet it exists. America has its famous written Constitution, which lies encased in thick glass at the National Archives Building. But America also has an unwritten constitution, which is much more far-reaching and much more relevant.
As I was writing this, the 2020 presidential election season was in its early stages. We were hearing about the Iowa Caucuses and Super Tuesday. Joe Biden was leading but hadn’t gone “past-the-post” even with his share of “superdelegates.” Those things, and many others, would eventually determine whether Biden won the Democratic nomination. None of them are mentioned in the Constitution.
What Article II of the Constitution says about election of the president is:
Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.
The Electors shall meet in their respective States, and vote by Ballot for two persons, of whom one at least shall not lie an Inhabitant of the same State with themselves. And they shall make a List of all the Persons voted for, and of the Number of Votes for each; which List they shall sign and certify, and transmit sealed to the Seat of the Government of the United States, directed to the President of the Senate. The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted. The Person having the greatest Number of Votes shall be the President, if such Number be a Majority of the whole Number of Electors appointed; and if there be more than one who have such Majority, and have an equal Number of Votes, then the House of Representatives shall immediately choose by Ballot one of them for President; and if no Person have a Majority, then from the five highest on the List the said House shall in like Manner choose the President. But in choosing the President, the Votes shall be taken by States, the Representation from each State having one Vote; a quorum for this Purpose shall consist of a Member or Members from two-thirds of the States, and a Majority of all the States shall be necessary to a Choice. In every Case, after the Choice of the President, the Person having the greatest Number of Votes of the Electors shall be the Vice President. But if there should remain two or more who have equal Votes, the Senate shall choose from them by Ballot the Vice-President.
The Congress may determine the Time of choosing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.
That is what the Constitution says. The 12th Amendment adds a lot more. But America doesn’t elect presidents the way the Constitution says. The constitution — not the Constitution — actually determines who will be president.
The operation of Congress is another case where the Constitution says little and the constitution dictates much. The American legislative branch operates on something called the “Two-Party System,” and it relies heavily on work done in committees.
The Constitution says, “The House of Representatives shall choose their Speaker and other Officers,” but it does not say what power that Speaker shall hold and it says nothing about committees or political parties at all.
The 4th Amendment to the Constitution says “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated…” But the constitution allows police officers to seize personal property without any trial or process. It’s called civil asset forfeiture, it is very clearly a violation of civil rights, and it happens all over the country. Read about it here and here and here. Watch this John Oliver report about it.
Americans are frequently and passionately urged to study the Constitution. But the Constitution doesn’t tell citizens how government works. Reading the Constitution tells you how America is governed to about the same extent as reading a recipe tells you what food tastes like, or reading the rule book tells you what the final score of a football game will be. It doesn’t. The Constitution, meaningful as it is as a national symbol, is just the barest set of guidelines.
The Constitution, from the very beginning, has been mute about important issues. And wherever the Constitution has not set clear and definite parameters, people in power have taken opportunity to work the nation’s practices to their advantage.
And here’s the important point: a republican form of government ought to constrain officials from abusing their power. Governments that give officials power to do as they please are oligarchies. As we look at our nation and observe an unwritten constitution that is different from the celebrated Constitution, we need to be concerned about the health of the republic.
Think:
Were you aware that the unwritten “constitution” existed?
Can you see that the unwritten “constitution: is not a conspiracy theory or a “Deep State” allegation, but simply a more accurate way of describing the way things get done?
