America's Unwritten Constitution: The Precedents and Principles We Live By (77 page)

For example, why would voters or legislators in Wyoming ever vote to reduce the Senate’s malapportionment, given that the existing rules favor Wyoming? Why would a U.S. senator from Wyoming ever sign his own electoral death warrant? Or why would Congress ever support an amendment
to limit congressional terms? In short, how could certain justice-seeking amendments ever escape the powerful gravitational force of an arguably unjust status quo?

To answer these far-reaching questions about America’s future, let us turn, one last time, to America’s past for guidance.

JUSTICE-SEEKING REFORMERS CAN ULTIMATELY PREVAIL
in time, using time—in particular, using the key device of a long time-delay between the vote on a visionary amendment and the effective start date of such an amendment. Americans are accustomed to laws (the Bush tax cuts, for example) that automatically lapse—that “sunset”—after a certain time period. Henceforth, we need to envision a different species of rules that should properly go into effect—that should “sunrise”—only after a substantial time delay.

For ordinary elections, long time-delays would make no sense: It would be an Alice-in-Wonderland world if we voted today, by democratic procedures, for lawmakers whose terms of office would start in, say, twenty or forty years. The idea of long time-delays for most ordinary statutes is likewise odd. But constitutional law often operates on a different timeline from ordinary statutory law, and for certain kinds of constitutional amendments—especially amendments that aim to establish the most just and fair decision procedures possible—long time-delays make a great deal of sense.

It is hard for a single generation to decide all issues of fair procedure for itself. Who decides which procedures are the best? Who decides who decides? By what vote? Who decides
that
question? And by what vote? And so on. There is, in principle, an infinite regress problem if a democracy is truly to bootstrap itself off the ground.
^*
If ever there were a proper role for the “dead hand of the past”—the fixing of certain ground rules by Generation 1 for the benefit of Generation 2—it is in the setting of fair decisional procedures, precisely because Generation 2 cannot easily do this for itself.
And the setting forth of fair decisional procedures is, of course, one of the basic aims of the American Constitution.
¹⁶

Once Americans understand that in adopting certain constitutional amendments, they are setting up fair procedures not so much for themselves as for their unborn grandchildren and great-grandchildren, they should be more likely to focus on what is truly right rather than what is in their own current interest. If Jefferson Smith is a senator from Wyoming, it may well run hard against his current self-interest to vote for an amendment that will mean one senator from Wyoming rather than two—unless the amendment has a decades-long time-delay clause. But if the amendment does have such a distant-sunrise clause, it cannot hurt Smith personally, because he will be gone before the sunrise. So perhaps Smith will then be somewhat more likely to concentrate on whether the amendment is truly fair. He may focus on the fact that his own grandchildren and great-grandchildren might not be Wyoming residents. Indeed, they may be more likely to be Californians. Why should Smith favor his Wyoming posterity over his California posterity? Ideally, Smith should favor neither and should instead consider what is truly fair and just, standing behind what the famous twentieth-century philosopher John Rawls called a “veil of ignorance” shielding Smith from biased considerations of personal self-interest.
¹⁷

Such generational veils of ignorance were powerfully and self-consciously at work at the Founding itself. For example, George Mason argued at Philadelphia that the rich should care about the poor because the posterity of the rich would one day come to fill even the lowest social ranks:

       
We ought to attend to the rights of every class of the people. [I have] often wondered at the indifference of the superior classes of society to this dictate of humanity & policy, considering that however affluent their circumstances, or elevated their situations, might be, the course of a few years, not only might but certainly would, distribute their posterity throughout the lowest classes of Society. Every selfish motive therefore, every family attachment, ought to recommend such a system of policy as would provide no less carefully for the rights and happiness of the lowest than of the highest orders of Citizens.
¹⁸

In a similar philosophical spirit, Gouverneur Morris urged his fellow Philadelphia delegates to rise above parochialism, because they or their posterity would one day likely inhabit other states. Other leading lights—including James Wilson, James Madison, and Alexander Hamilton—voiced related thoughts in the summer of 1787, explicitly imagining themselves to be representatives of a wide posterity across time and space.
¹⁹

What was true at America’s Founding moment has likewise been true of amending moments in American history. Indeed, from one point of view, the “Founders” themselves were amenders; they were, after all, modifying their own preexisting legal system in proposing the Constitution itself.

A close look at the original Constitution and its amendments reveals clever, albeit too-rare, use of the sunrise device to overcome immediate entrenched interests and injustices and thereby achieve a more disinterested and just future state of affairs. Although the Deep South refused to give up the power to import transatlantic slaves for the first twenty years of the new Constitution’s operations, this region was willing to allow precisely such importations to be banned by Congress beginning in 1808—and for-evermore. Had the framers been equally clever in the use of sunrise rules on other slavery-related issues—for example, had the original Constitution prohibited slavery in all western territory after 1808, or prohibited three-fifths apportionment credit for all slaves after 1808—perhaps Americans might have ultimately ended slavery without the unspeakable carnage of the Civil War. In the mid-twentieth century, Americans adopted a new amendment limiting presidents to two terms, but did so in a way that did not deprive any current or past president of perpetual reeligibility.

Various states in the Founding era likewise used sunrise rules to achieve the gradual abolition of slavery itself. Under these rules, existing slaves would not be liberated—but eventually their future children would walk free. In this way, the arc of history, though long, bent toward justice.

In the same spirit, amendment-minded Americans should imagine ourselves today to be virtual representatives of our twenty-second-century posterity, tasked with the awesome challenge of framing just rules for that society even though we will never live to see the brighter day that we aim to bequeath. If it makes sense for modern American constitutionalists to attend to words written and deeds done centuries ago to form a more perfect
union, then it also makes sense for us to struggle to envision and help birth a still more perfect union centuries hence. Much of American history remains to be written, and much of American constitutional law remains to be framed.

FAITHFUL CONSTITUTIONALISTS
labor under a twofold constitutional responsibility. We must look backward in time and claim our constitutional inheritance, and we must also look forward in time and make our constitutional donation. Though this second responsibility does not reside on the clear surface of any explicit constitutional text, surely it forms an integral part of America’s unwritten Constitution.
²⁰

_____________________

^*
At the same time that I was daydreaming, so was Professor Robert Bennett. See Robert W. Bennett, “Popular Election of the President Without a Constitutional Amendment,”
Green Bag 2d
4 (2001): 241; Robert W. Bennett, “State Coordination in Popular Election of the President Without a Constitutional Amendment,”
Green Bag 2d
5 (2002): 141.

^*
In 1916, President Woodrow Wilson toyed with a similar way to hand presidential power to the candidate with the true mandate. Running against Charles Evans Hughes, Wilson, the incumbent, imagined that if Hughes won the election, he (Wilson) could appoint Hughes secretary of state—the officer next in line after the vice president under the presidential-succession law then in effect. If Wilson and his vice president, Thomas Marshall, were then to resign, Hughes could then take over as president. In the actual event, Wilson beat Hughes and nothing ever came of Wilson’s musings.

^*
As we saw in Chapters
2
and
9
, at several points at the Founding majority rule presented itself as a preexisting focal point and default rule, a rule in effect inherited from previous theory and practice.

A
T SOME POINT IN THE PRECEDING PAGES
, it will doubtless have struck the reader that this book, whose title promised to explain and explore “America’s Unwritten Constitution,” is also chock-full of detailed claims about the written Constitution itself.

If there is any contradiction here, it is only skin-deep. In order to establish that some specific rule or principle is properly understood as part of America’s
unwritten
Constitution, surely it must be shown that the rule or principle in question is not in America’s
written
Constitution, read at face value. But how could I prove this to the reader without parsing the document itself? And how could I further prove that a particular unwritten rule or principle forms part of America’s
Constitution—
and is thus roughly on a par with or somehow akin to the canonical text—without still more examination and elaboration of the document itself?

Precisely because America’s unwritten Constitution and America’s written Constitution fit together to form a single system, no proper account of the former should ever lose sight of the latter: The terse text is inextricably intertwined with the implicit principles, the ordaining deeds, the lived customs, the landmark cases, the unifying symbols, the legitimating democratic theories, the institutional settlements, the framework statutes, the two-party ground rules, the appeals to conscience, the state-constitutional counterparts, and the unfinished agenda items that form much of America’s unwritten Constitution.

Even if twenty-first-century Americans unanimously agreed that the written Constitution had no binding legal authority whatsoever over us, we would nevertheless do well to dwell on it. The American Revolution,
the Civil War, the Progressive Era, and the Second Reconstruction of the 1960s have all left their explicit marks on this unfolding document. The convenient manner in which amendments are layered one atop another in chronological sequence adds special transparency to this intergenerational project and invites readers to view the terse text in light of the grand narrative of American history. Even a casual reader can see when each textual change was made and can thus easily trace the temporal trend-line of American constitutionalism. Like a miniature Grand Canyon, the written Constitution exposes America’s colorful history to the eye of the ordinary observer.

The document’s brevity and its intimate relation to America’s storyline make it a brilliant focal point drawing together ordinary twenty-first-century citizens coming from all directions. The genetic forebears of today’s citizenry arrived in the New World at different times from different lands, professing different faiths, speaking different tongues, and displaying different skin colors. Yet in the written Constitution itself, we can all find a common vocabulary for our common deliberations and a shared national narrative—an epic saga of ordinary and ever more inclusive Americans binding themselves into one people, one posterity.

For all these reasons and many more, no sensitive account of America’s unwritten Constitution could ever stray far from its written counterpart. At every turn, I have thus tried to keep the document in view even as I have invited readers to go beneath, behind, and beyond it. The organizational schema of this book—with subheadings in each chapter consisting of phrases drawn from the written Constitution—has aimed to highlight this general approach. Rarely does the featured phrase, if read in isolation and at face value, definitely answer the various legal questions that I have tried to analyze. But the featured phrase typically meshes with various elements of America’s unwritten Constitution to direct faithful interpreters to sound constitutional solutions.

THE CAREFUL READER
may also have noticed that the very word “constitution” is a chameleon that takes on different hues in different contexts. The canonical text, of course, repeatedly describes itself as “this Constitution,” but once we come to understand that this text is crucially incomplete
in various ways, exactly what sorts of things outside the text are sensibly viewed as genuinely “constitutional” things? The preceding pages have suggested that, beyond the written Constitution itself, at least three other understandings of America’s “constitution” are useful.

First, America’s “constitution” encompasses cherished principles of higher law that are widely understood to limit American governmental officials, even if these specific principles do not appear explicitly in the terse text. Some of these higher-law rights and rules are fully enforceable by courts. Others may not be, but are still commonly recognized as binding in legal conscience upon nonjudicial actors.

Second, America’s “constitution” comprises the practices, protocols, procedures, and principles that constitute the government. Especially noteworthy are those aspects of governmental organization and operation that are somehow entrenched—that is, rendered immune from easy and ordinary legislative modification. Some kinds of entrenchment are highly legal and formal. For example, a court might bar certain attempted governmental restructurings violative of unwritten constitutional principles of federalism or separation of powers. Other sorts of organizational entrenchment operate informally and politically, via incentive structures and power allocations that make the current system functionally self-perpetuating in certain respects. (America’s two-party duopoly is an example.)