Unwritten Constitution: How Practices Shape U.S. Power

The American constitutional system is a blend of written and unwritten elements. While the written Constitution provides a foundational text, many aspects of government operation are shaped by unwritten traditions, customs, and practices that have evolved over time. This interplay between the written and unwritten constitution is crucial for understanding how the government is constituted and how constitutional law functions.

The Nature of Constitutions

A constitution, at its core, defines how a government is arranged and how its different entities and organs of power operate and interact. Unlike some nations, such as Britain, which have an unwritten constitution based on centuries of customs and traditions, the United States possesses a written Constitution. However, America also has an unwritten constitution, a collection of traditions and practices that complement and sometimes clarify the written text. The challenge for Americans is to understand how these two forms of constitution fit together.

The Presidency: Beyond the Text

The presidency, for instance, is not solely defined by Article II of the Constitution, which is often underspecified. Instead, the powers and structure of the presidency have been shaped by historical practice, beginning with precedents set by early presidents like George Washington. These practices have given concrete substance and meaning to an otherwise open-ended and ambiguous text. This phenomenon extends beyond the presidency to Congress, the judiciary, and administrative agencies. Where the written text is clear, it controls; but where it is unclear or underspecified, the gaps are filled by actual practice and the unwritten constitution.

Congress: Inherent Powers and Unwritten Practices

One might assume that Congress operates strictly within enumerated powers and a rigid separation of powers, safeguarding liberty by requiring agreement from the House, Senate, and President for actions like criminal prosecution. However, this is not always the case.

Congressional Authority Beyond Enumerated Powers

There are instances where each house of Congress can act independently as "policeman, prosecutor, judge, juror, and jailer all in one," even without a specific statute. For example, each house can conduct oversight hearings, compel testimony, and hold individuals in contempt if they refuse to cooperate. This contempt power can lead to incarceration until questions are answered.

Furthermore, each house claims the authority to adjudicate and punish offenses committed against it, such as bribery of a member. This power, exercised since the founding, allows a house to charge, try, and imprison individuals within its own facilities, at least for the duration of its session. This appears to be an exception to the general separation of powers and enumerated powers, as the written text does not explicitly grant such authority.

Justification for Inherent Powers

The justification for these inherent powers is that they are necessary for the legislature to perform its functions effectively. To legislate intelligently, Congress needs broad oversight power to gather information and the ability to prosecute offenses against itself without relying solely on the executive or judicial branches.

While the text doesn't explicitly state these powers, it can be interpreted to permit them. The argument is that certain oversight and investigation functions, including the power to summon witnesses and prosecute offenses, are inherent to being a legislature. This is supported by historical examples of the English Parliament and state legislatures at the time of the founding, which also claimed such inherent powers.

Historical Development and Judicial Affirmation

Despite the federal Constitution's stricter system of enumerated powers and separation of powers compared to Parliament or state legislatures, the U.S. Congress has claimed and exercised these broad powers from its inception. These claims have been recognized and confirmed by other branches of government.

Early examples include:

• Robert Morris Investigation: The House of Representatives held hearings to investigate allegations of financial impropriety against Robert Morris, a financier of the American Revolution, even though no specific text granted this power.
• General St. Clair's Expedition: The Senate conducted oversight hearings into a botched military expedition under President Washington, subpoenaing witnesses and compelling testimony.
• Robert Randall Bribery Case: In an early instance, the House of Representatives apprehended, tried, and imprisoned Robert Randall for attempting to bribe a congressman.

The Supreme Court, in cases like Anderson v. Dunn (Marshall Court era) and subsequent 20th-century rulings, has unanimously upheld this power of each house to punish for contempt. The courts generally defer to Congress's judgment as long as it acts within its jurisdiction.

Limitations on Congressional Contempt Power

However, there are limitations:

• No one can be held for longer than the House or Senate is in session.
• The offense must be a crime against Congress itself (e.g., bribing a member, lying before Congress).
• The prosecution cannot violate the Bill of Rights (e.g., punishing someone merely for speaking out against Congress).
• Presumably, individuals are entitled to certain fair procedures, including legal representation.

Vacancies in Government: Unwritten Solutions to Constitutional Gaps

The interplay between the written and unwritten constitution is also evident in how vacancies are handled across the three branches.

Judicial Vacancies and Recess Appointments

The Constitution allows the President to make recess appointments to fill vacancies that occur when the Senate is not in session. While this clause applies to cabinet positions, its application to judges is more complex. Judges are meant to serve for good behavior and maintain independence, which could be compromised if they are merely provisional appointments subject to Senate confirmation later.

A strict textual interpretation might suggest that recess appointments for judges should be temporary, with the appointee serving only during the recess and not being eligible for permanent appointment. This would preserve judicial independence by removing the pressure of future confirmation.

However, historical practice has diverged from this ideal. From George Washington onward, presidents have made recess appointments to lower courts and, until recently, to the Supreme Court. These judges have decided cases before Senate confirmation, and the Senate has had the option to confirm or reject them. This practice, though potentially compromising judicial independence, has become an accepted part of the American constitutional configuration.

Senate Vacancies

Filling Senate vacancies is relatively straightforward: a new election is held, and the governor can temporarily appoint someone if authorized until the election.

House of Representatives Vacancies and the "Bootstrapping" Problem

The House of Representatives presents a unique challenge because it "dies" every two years, with all members up for re-election. Unlike the Senate, which is a continuous body with staggered terms, there is no continuity in the House from one Congress to the next. On day one of a new Congress, no one is formally a House member until sworn in.

This raises a theoretical problem: if there are contested elections, who decides who gets sworn in? The Constitution states that each house is the judge of its own elections, but who decides who decides on day one when the House itself hasn't been fully constituted?

Possible theoretical solutions include:

• The outgoing House: This is problematic because the old House formally ceases to exist at the end of its term.
• The Senate: As a continuous body, the Senate could oversee the selection of the new House, similar to how judges select jurors. However, the text doesn't explicitly grant this power.
• The President: The President is always in office, but allowing the executive to decide who is lawfully in the House could be seen as an awkward overreach.

The Civil War Solution

During the Civil War, this theoretical problem became a practical crisis due to contested seats from seceding states. To address this, Congress passed a statute during the war, agreed upon by the House, Senate, and President. This statute stipulated that on the first day of a new House, the clerk (a ministerial officer of the old House) would preside and decide whom to recognize.

This solution, not explicitly provided for in the Constitution, became part of the unwritten constitution. It allows the House to "bootstrap" itself into existence every two years, filling a peculiar gap in the written text. This clever solution, born out of necessity during the Civil War, has been in place ever since, demonstrating how the unwritten constitution supplements and completes the written one.

Conclusion

The American constitutional system is a dynamic interplay between its written text and its evolving unwritten practices. While the written Constitution provides the framework, the unwritten constitution, shaped by historical precedents, traditions, and practical solutions, fills in ambiguities and addresses unforeseen challenges, ensuring the continuous operation and adaptation of the government.