The Unwritten Constitutions of the United States

45 Pages Posted: 20 Nov 2019

See all articles by Mark Graber

Mark Graber

University of Maryland - Francis King Carey School of Law

Date Written: November 18, 2019

Abstract

This paper outlines the various unwritten constitutions of the United States, from the Aristotelian and Gödelian Constitutions to the various constitutions in and outside of the courts, to the features of distinctive constitutional regimes in the United States. One goal of this paper is simply to detail how many unwritten constitutions exist and bring some clarity to the different phenomena that might go under the heading of the unwritten constitution. A second goal is to highlight the empirical dimensions of constitutionalism in general and of American constitutionalism in particular, with particular emphasis on how the empirical and normative dimensions of constitutionalism cannot be separated. Constitutionalism is an intricate blend of law and politics rather than a means of separating law from politics. Written and unwritten constitutional politics intertwine with written and unwritten constitutional law in ways ignored by both legal and political science versions of the law/politics distinction. The third goal is to highlight some features of contemporary constitutional politics in the United States. Constitutional angst in the United States, the following pages suggest, is being fueled by changes in unwritten constitutional politics that have not yet been captured by written or unwritten constitutional law. Bringing the structure of constitutional politics back into the structure of constitutionalism promises better constitutional analysis and, perhaps, better constitutional practice.

Keywords: constitutionalism, unwritten, Gödel, fundamental law, Aristotle, extratextual norms, constitutional contracts, intertextualism

Suggested Citation

Graber, Mark, The Unwritten Constitutions of the United States (November 18, 2019). U of Maryland Legal Studies Research Paper No. 2019-13, Available at SSRN: https://ssrn.com/abstract=3489505

Mark Graber (Contact Author)

University of Maryland - Francis King Carey School of Law ( email )

500 West Baltimore Street
Baltimore, MD 21201-1786
United States

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