For present purposes, I take “America’s Unwritten Constitution” to refer (at least in some measure) to the norms, conventions, and practices that have developed in America to give meaning to, and fill in the gaps of, the constitutional text that was penned in 1787, ratified by a requisite number of states shortly thereafter, and formally amended by the Bill of Rights in 1791 and seventeen times during the two-and-a-quarter centuries since. One important constraint on the nation’s Unwritten Constitution is that is must, at some acceptable level, accommodate itself to the written document. A related feature of the Unwritten Constitution is that, as with the formal text, abiding aspects of the unwritten version need to be anchored in some kind of political foundation. These two features of the Unwritten Constitution – a fidelity to the document itself and a grounding in democratic processes – can be helpfully appreciated by examining another crucial component of today’s Unwritten Constitution, and one as to which federal courts have generally been much less central in determining the meaning and operation of the written Constitution’s provisions: the way we select Presidents in America.

Chapter 7 covers the federal constitutional debates and public debates on ratification, respectively. Substantial selections from Madison’s Notes of the Debates offer insight into the main subject of disagreement: Were the American people to be apprehended in their corporate capacity, at state level, or as a collection of individuals that happened to live various states? Corresponding to this theoretical dilemma, some delegates proposed the equal representation of the states in the national legislature, while others argued that the number of representatives should be based upon the population of each state. In the end, the Connecticut Plan offered a compromise between the two understandings of the people. In some respects, one could claim that the framers managed to recuperate and make permanent the Puritan legacy of the bi-dimensional covenant at a scale previously difficult to imagine. The second part of the chapter presents selections from both the Federalist Papers and the Anti-Federalists’ writings. These excerpts demonstrate the unique combination of theoretical perspectives in the American Constitution as well as lingering doubt about its practicality and legitimacy.