Written vs Unwritten Constitution: Congress, Courts, and Filibuster

The U.S. Constitution, both written and unwritten, dictates the structure and operation of the American government. While the written text provides foundational rules, the unwritten constitution, comprising tradition, practice, and interpretation, often clarifies ambiguities and sets practical limits.

Congressional Representation

The written Constitution specifies two senators per state, a clear and unambiguous rule. However, for the House of Representatives, the text is less precise. It mandates at least one representative per state, allowing for a range from 50 to potentially 5,000 members based on current population.

The unwritten Constitution, however, significantly narrows this range. It posits that the House, as the "people's branch" and the most numerous part of Congress, should never be smaller than the Senate (which has 100 members). Historically, critics of the Constitution worried the initial House of 65 members was too small and unrepresentative. During the ratification process, Federalists promised to expand the House after the first census, aiming for 100 members and continued growth. This promise became part of the unwritten constitution.

The House indeed grew, driven by a "ratchet effect": once a certain size, members are disincentivized to shrink it, as that would risk their own positions. It eventually reached 435 members in the early 20th century, a number fixed by statute, not the Constitution, as a practical limit to prevent infinite growth. This number is significantly larger than the minimum 50 but far smaller than the theoretical maximum of 5,000, reflecting a balance between constituent representation and practical deliberative capacity.

The Supreme Court's Size

The Constitution does not specify the size of the Supreme Court. While it currently has nine justices, it has varied throughout history, from as few as five to as many as ten. The tradition of nine justices has been consistent throughout the 20th century.

President Franklin Roosevelt's attempt to expand the Court to 15 justices in 1937 (his "court-packing plan") was rejected by Congress. This rejection, however, did not establish an unwritten constitutional principle that the Court must be nine. The written Constitution clearly grants Congress the power to determine the Court's size. Congress's non-use of this power for an extended period does not negate its existence. If Congress were to change the Court's size for "good government" reasons rather than mere partisan advantage, it would be within its constitutional authority, as it has done in earlier periods of American history.

Internal Voting Rules and the Filibuster

The Constitution does not explicitly detail internal voting rules for government entities. Instead, majority rule is largely presupposed as the baseline principle for assemblies, unless otherwise specified. This is evident in:

• Implicit Constitution: The Constitution states that a two-thirds vote in both the House and Senate is required to override a presidential veto. This implies that ordinary bills should require something less than two-thirds, typically a simple majority. If a Senate rule could entrench a 60, 70, or 80-vote requirement for ordinary legislation, it would contradict the clear text of the veto clause. Supermajority requirements in the Constitution (e.g., for constitutional amendments or expelling a member of Congress) are exceptions to the baseline of majority rule.
• Enacted Constitution: The Constitution itself was ratified by simple majority votes in state conventions (e.g., 30-27 in New York), demonstrating that majority rule was understood as the fundamental principle.
• Lived Constitution: Ordinary clubs and organizations typically operate by majority rule unless their bylaws state otherwise.
• Doctrinal Constitution: The Supreme Court, in United States v. Ballin, affirmed that "the general rule of all parliamentary bodies is that where a quorum is present the act of the majority of the quorum is the act of the body," unless specific limitations are prescribed by the organic act. The Court found no such limitation in the federal Constitution regarding general voting.
• Institutional Constitution (History): The first Senate, and indeed all Senates prior to the Civil War, operated by majority rule. There is no significant historical example of a minority thwarting a majority's will through a mechanism like today's filibuster before the Civil War. The Compromise of 1850, where free states gained a bare simple majority in the Senate, was significant precisely because bare majorities governed.

The Filibuster (Senate Rule 22)

Senate Rule 22, which governs the filibuster, is a much later development. Critically, a careful reading of Rule 22 does not state that it cannot be repealed by a simple majority vote. It only states that debate on a measure cannot end without 60 votes.

The "nuclear option" (also called the "constitutional option") is a mechanism by which a simple majority of the Senate, if determined, can effectively change or eliminate Rule 22. After allowing all senators to speak, a simple majority can vote to end debate on filibuster reform, asserting their constitutional right to set their own rules. This demonstrates that while minorities have the right to speak, majorities ultimately have the right to vote and rule.

Innovations and Constitutional Fit

The relationship between the written and unwritten Constitution can be illustrated by examining innovations: those that align with the Constitution tend to survive, while those that contradict it ultimately fail.

Failed Innovations

1. Legislative Veto: This mechanism allowed Congress to pass a law, but then later, one or both houses (without presidential signature) could veto specific applications of that law. The Supreme Court struck down the legislative veto as unconstitutional. It violated the separation of powers because:

   • If Congress was determining if factual conditions were met, it was acting as an adjudicator, a role for the executive or judiciary.
   • If Congress was changing the standards, it was effectively passing a new law, which requires bicameralism (passage by both houses) and presentment to the President.
   • The legislative veto did not fit into the three constitutional powers (legislative, executive, judicial). Presidents across the 20th century consistently viewed it as unconstitutional.

2. Independent Counsel: Created post-Watergate to investigate executive wrongdoing, the independent counsel model faced constitutional challenges. Judges were appointing prosecutors, which is not how the system is designed. Furthermore, the independent counsel was meant to be both "independent" and "inferior" (as judges can only appoint inferior officers), a contradictory combination. This structure gave non-judicial powers to judges and ultimately failed because presidents, both Republican and Democrat, recognized its constitutional flaws and refused to reauthorize the temporary statute.

Successful Innovations

1. Saxby Fix: This addresses a constitutional provision preventing senators or representatives from taking an executive or judicial position if its salary was increased during their time in Congress. The "Saxby fix" allows an individual to take the position but decline the salary increase, accepting only the earlier, lower salary. This adaptation aligns with the spirit of the anti-bribery provision without making individuals permanently ineligible due to cost-of-living adjustments. It has been used by both Republican and Democratic administrations (e.g., Hillary Clinton becoming Secretary of State).

2. Independent Agencies: These agencies, like the Federal Reserve, have members appointed by the President but who cannot be fired at will, only "for cause." While the Constitution has elaborate rules for appointment, it is less specific on removal. As long as the President makes the appointments, and the removal power is either at-will or for-cause, the system is permissible. Congress's attempts to vest appointment powers in itself have been struck down by the Supreme Court. Independent agencies have a long history, supported by presidents of all parties, demonstrating their fit within the constitutional structure.

Conclusion

The American constitutional system is a blend of written rules and unwritten practices. Where the written Constitution is ambiguous, informal adaptations that clarify ambiguities, fill gaps, are embraced by all branches and parties, and have deep historical roots tend to survive. Innovations that contradict the clear letter and spirit of the Constitution, lack historical precedent, or are not broadly accepted, ultimately fail. The written and unwritten constitutions are intertwined, forming a single, dynamic system.

Even for the judiciary, the text can be ambiguous. For example, recess appointments to the Supreme Court, like Potter Stewart's in the late 1950s, demonstrate how presidential power can be exercised during Senate recesses, even for high judicial offices, a practice that has continued for lower federal courts.