The unwritten constitution of the United States includes the Aristotelian and Gödelian Constitutions, the various constitutions in and outside of the courts, and the features of distinctive constitutional regimes. This chapter details these unwritten constitutions and highlights the empirical dimensions of constitutionalism in general and of American constitutionalism in particular, emphasizing how the empirical and normative dimensions of constitutionalism cannot be separated. Constitutionalism is an intricate blend of law and politics, not 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. This chapter also explores some dynamics in contemporary constitutional politics in the United States and shows that changes in unwritten constitutional politics 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.

Lawyers are problem solvers. The problem may already have occurred (the promised delivery of widgets never arrived) or lie in a future that someone wants to address (what shall we do if the widgets get lost in transit?). The goal in mind as the lawyer looks for a solution to the problem varies across areas of law and the differing roles lawyers play. Contract law facilitates social and economic cooperation and addresses breakdowns in agreements (someone is going to be out of pocket if those widgets never show up). In contrast, the systemic purposes of criminal law are punishment and deterrence (it’s socially useful to dissuade a would-be thief from stealing the widgets). Within limits the law creates, the criminal defendant’s attorney and the prosecutor have diametrically opposed goals, while the judge’s purpose is to ensure the lawfulness and, again within limits dictated by the law, the justice of the proceedings.