The Status of Unwritten Constitutional Conventions in the United States
Keith E. Whittington | 2013 U. Ill. L. Rev. 1847
There has been a long historical difficulty in determining what ideas and documents have “constitutional status” within any given political system. This Article examines one feature of unwritten constitutions, the idea of constitutional conventions, by comparing the U.S. and British systems. Unwritten constitutional conventions have long been understood to be integral to the operation of Westminster parliamentary systems. The British legal scholar A.V. Dicey emphasized that “constitutional morality” supplemented legal rules in regulating the exercise of political power and limiting the discretion of government officials. U.S. fundamental law was thought to provide clarity and commitment in a way that was both distinct from and deeper than anything that might be found in the Westminster parliamentary system. The presence of a written constitution and judicially enforceable constitutional rules has sometimes been thought to render constitutional conventions superfluous. Such arguments, however, were misguided. British constitutionalism included more entrenched commitments than such a sharp distinction might suggest and U.S. constitutionalism relied more on unwritten practices than the text might imply. These unwritten constitutional conventions have been common over the course of U.S. history and have played an important role in defining the effective constitution of the polity. Constitutional law, however, always threatens to displace constitutional morality. Unwritten conventions are often regarded as in tension with the supremacy of the written text and the primacy of constitutional interpretation.