America's Unwritten Constitution: Core Takeaways & Tools

This article delves into the concept of America's "unwritten Constitution," exploring how it complements and enriches the understanding of the written document. While the written Constitution, comprising approximately 8,000 words, serves as the anchor of the constitutional project, a complete understanding requires looking "beneath, beyond, and behind" these words.

The Limitations of Strict Textualism

The written Constitution does not provide a complete set of instructions for its own interpretation. Relying solely on a narrow, literal reading of the text presents several challenges:

• Unmentioned but Essential Concepts: Key constitutional ideas like "separation of powers," "checks and balances," "limited government," "the rule of law," and "federalism" are not explicitly stated in the U.S. Constitution, though they are fundamental to its structure and operation. While some state constitutions include these phrases, the federal document does not.
• Ambiguities in Literal Interpretation: A strict literal reading can lead to problematic or nonsensical outcomes. For instance, the Constitution states that the Senate tries all impeachments and the Vice President presides over the Senate. If the Vice President were to be impeached, a literal reading might suggest they preside over their own trial, which is clearly illogical.
• Scope of Rights and Powers:
  • The First Amendment states "Congress shall make no law abridging freedom of speech and of the press." A literal interpretation might suggest that the President, federal courts, or states are free to suppress speech, or that Congress could have done so before the First Amendment's ratification.
  • The Fifth Amendment's double jeopardy clause mentions "life or limb." A literal reading might imply that imprisonment without threat to life or limb is not covered.
  • The Ninth Amendment explicitly acknowledges "unenumerated rights," suggesting that not all rights are explicitly listed in the text. However, it doesn't provide instructions on how to identify these rights.

The Unwritten Constitution: Supplementing the Text

The "unwritten Constitution" refers to the principles, traditions, and interpretive methods that supplement the written text, making it coherent and applicable. These elements are crucial for a comprehensive understanding of American constitutionalism.

Ground Rules for Interpretation

The Constitution's text itself invites supplementation. There are established "ground rules" for interpreting the Constitution that go beyond narrow literalism, yet remain faithful to its core principles. These rules are not arbitrary but are widely accepted by legal professionals across the political spectrum.

The second half of the course focuses on these tools and techniques of constitutional interpretation, which are explored in the book "America's Unwritten Constitution." Each chapter introduces a different method for understanding the Constitution beyond its literal words.

Examples of Interpretive Tools and Their Application to Free Speech

The concept of "freedom of speech" serves as a recurring example to illustrate various interpretive techniques:

1. Reading the Constitution as a Whole (Structural Argument):

   • The Constitution establishes a system of popular self-government, where "we the people" are sovereign.
   • This system presupposes robust, uninhibited freedom of political expression for citizens to engage with their government, which acts as their agent.
   • Therefore, free speech is a structural necessity for free and fair elections and popular sovereignty, even before the First Amendment was adopted. This principle applies to all branches of government and states, not just Congress.

2. Historical Argument (How the Constitution Came About):

   • The Constitution was "ordained and established" through an "epic exercise of freedom of speech" during its ratification in 1787-1788.
   • Free speech was integral to the very process by which the Constitution became law, making it a "baked-in" component of the constitutional framework. This historical context provides another basis for understanding free speech beyond the First Amendment's text.

3. Custom and Tradition (Ninth Amendment and Lived Experience):

   • The Ninth Amendment acknowledges "unenumerated rights." One source for these rights can be found in the "folk ways and customs" of the American people, as articulated by Edmund Burke.
   • Freedom of speech is a deeply ingrained part of America's "lived experience" and daily customs, demonstrating how the people themselves manifest their understanding of fundamental rights.

4. Case Law and Precedent:

   • The Constitution grants "judicial power" in Article Three, and Supreme Court cases play a vital role in shaping constitutional understanding.
   • Landmark cases, such as New York Times v. Sullivan, emphatically affirm freedom of speech and the press. These judicial interpretations, accepted by justices across the ideological spectrum, contribute significantly to the unwritten Constitution.

The Book: "America's Unwritten Constitution"

The course's second half is anchored by the book "America's Unwritten Constitution." The cover of this book itself illustrates the concept of reading "between the lines." While a literal left-to-right reading of the title and subtitle might appear garbled ("America's the precedents unwritten and principles constitution we live by"), understanding the different fonts and implied structure reveals the intended meaning: "America's Unwritten Constitution: The Precedents and Principles We Live By." This visual metaphor highlights that meaning can be found beyond a narrow, literal analysis.

The first chapter of the book specifically addresses this technique of "reading between the lines," emphasizing a holistic approach to textual interpretation rather than a word-by-word or clause-by-clause analysis.

Concluding Challenge

The central question posed to prepare for the next lecture is: "Who presides at the Vice President's impeachment trial?" This question serves as a practical example of how a purely literal reading of the Constitution can lead to an absurd conclusion, thereby necessitating a deeper understanding informed by the principles of the unwritten Constitution.