By the early twentieth century, democracy was in the ascendant. Not all observers and practitioners were enthusiastic about this development. But, whether favourable towards it or not, they came to accept the predominance of the concept that the people were the ultimate source of political authority.1 An example of a grudging acknowledgement that confirms the strength of the conceptual transition that had occurred came from the constitutional historian, William Sharp McKechnie. He observed in his 1912 work of contemporary analysis The New Democracy and the Constitution that the public pronouncements of politicians suggested ‘the triumph of Democracy in Great Britain is now assured’ McKechnie noted a tendency as common to ‘Conservatives and Liberals as’ as it was among ‘Socialists and Labour leaders’ to display ‘[a] fervent and almost servile eagerness to interpret and to execute “the people’s will”’.2

In this Introductory chapter to “Amending America’s Unwritten Constitution,” the editors invite readers to consider the puzzle presented in the book: How to amend America’s unwritten constitution? The editors undertake a systemic inquiry into each of the major themes raised by the puzzle: What is a “constitution,” what is “America’s” constitution, what does it mean to “amend” a constitution, and how might we identify an amendment to an “unwritten” constitution, specifically the unwritten constitution of the United States. As the editors set out to answer these questions, they survey the existing literature in the field to lay the foundation for the chapters to follow. They introduce the chapters as well as how each of them illuminates the answer to the major thematic questions raised and explored in the book. What results is ultimately both a proper introduction to this book and also an important scholarly resource to understand constitutional change in the United States.

In this chapter, the author offers a comparative outlook on whether and how we might understand the act of “amending” America’s unwritten Constitution. Drawing upon examples from the United States and the United Kingdom, the author argues that the unwritten rule for amending an unwritten constitution is “Just Do It.” Unwritten constitutions are amended when relevant political actors simply ignore existing conventions or taken-for-granted propositions about the constitutional order. But, for such an action to lead to an “amendment,” the change must “stick” – subsequent actors must either treat the prior convention as now merely optional or, more strongly, treat the new practice as a new convention. One condition for “sticking,” he explains, is that those who breach the prior convention offer an explanation for the breach that (a) seems reasonable at the moment of breach and that (b) identifies a large enough class of similar occasions for breach in which departing from the convention would also seem reasonable. Such explanations provide the basis for the sense of obligation (or, sometimes, the sense of “optionality”) that characterizes elements of unwritten constitutions.

The literature on America’s unwritten constitution is rigorous and compelling, but it tends to focus almost entirely on how the federal Constitution has evolved through informal processes. In this chapter, I argue that our understanding of America’s unwritten constitution would be improved if we broadened the inquiry to include state constitutions. Unlike the federal Constitution, where Article V’s near-impossible amendment rules force essentially all reforms into informal pathways, the states have designed amendment rules and facilitated political cultures that encourage frequent formal amendment of constitutional text. Consequently, to the extent that unwritten constitutional commitments exist in the states, they are not the product of necessity, and they may shed new light on how constitutional rules evolve. In this chapter, I show that in various significant areas, states have indeed fostered robust unwritten constitutions and that state constitutionalism is characterized by a complex, competitive, and highly contextual interaction between codified and unwritten constitutional commitments.

When we use the term “amendment,” we are analogizing changes that happen outside the four corners of the text to the those that happen within it – and we know that the inside, textual ones happen through specified procedures that have a democratic component. The amendment idea thus suggests democratically legitimate change – a change carried out by the proper procedures, in recognizable ways. Moreover, the term “amendment” generally connotes legitimacy – not just a change, but a change made according to the rules and one that leaves the basic endeavor of democratic constitutionalism in place. If Congress or the president simply began violating the constitution, for instance, few would reach for the word “amendment” to describe what was happening. The idea of amendment also evokes something persistent and distinct from the constant tussle and fluctuations that characterizes ordinary politics. The author therefore proposes that when we talk about amending America’s unwritten Constitution, we are not typically thinking about evolution in our practices and understandings, but are trying to describe a special set of durable changes that we ought to regard as democratically legitimate.

The first challenge in understanding the courts’ role in unwritten amendments is definitional. “Unwritten amendments” could be understood as overlapping with, but not identical to, amendments to an “unwritten constitution.” Or they could be amendments to the written constitution that leave no trace on the text of the written constitution. In this chapter, the author focuses on the latter in the hopes that it will illuminate the role of the courts. The undeniable reality is that at various times, the Constitution, or various provisions of the Constitution, has been understood in different ways. When those understandings might be considered “unwritten amendments,” however, is not immediately obvious. The author therefore begins by considering several possible definitions of that term she hopes will then help move us toward a more robust understanding of the role of the courts in interpreting, constructing, or participating in “amending” the Constitution.

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.

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.

A core function of constitutions, unwritten and written alike, is to constrain the actions of government officials. This chapter argues that a constitution cannot serve this function unless communities of “constitutional participants” pay attention to and engage with the constitution and its meaning. Participants are needed not only to develop shared understandings of ambiguous text but also to create a credible threat of sanctions, legal or otherwise, for unconstitutional actions. The chapter further suggests that American states may have, at least on certain issues, constitutional communities too sparse to activate constitutional constraint. Finally, the chapter briefly problematizes the creation of constitutional communities, asking whether and how they could be forged in the states without generating costs of capture or further polarization.

This chapter considers the Constitution, the highest law in the legislative hierarchy, and (inescapably) its relationship with the Chinese Communist Party (CCP). Due to China’s economic development over recent decades, it has been difficult for traditional theories, either communist or liberal ones, to accurately reflect the constitutional reality in China. Concepts such as the “unwritten constitution” or “living constitution” in the Western context are unable to provide a holistic view of China’s Constitution, especially after 1978. China’s Constitution, centred on the CCP and the state, has been largely transformed since this time. This chapter goes beyond the liberal approach and argues that a dual constitution has developed in China, within which the Party’s Constitution attempts to keep pace with that of the state. More specifically, the Party has been endeavouring to integrate itself into the State through political conventions and “intraparty regulations” (dangnei fagui). This dual constitution is unique in the sense that it departs from the model articulated by Mao Zedong, deviates from that of the Soviet Union and does not follow the formalistic approach adopted by Western countries in defining the nature of a constitution.

The modern state of New Zealand was founded on the signing of the Treaty of Waitangi between the British Crown and indigenous Maori tribes. New Zealand’s partly uncodified, partly unwritten constitution is thus structured around questions of indigenous rights and the treaty relationship between the Maori and the Crown. This chapter examines how and why the Treaty and indigenous rights play a fundamental role in New Zealand’s constitutional system, and it uses the example of New Zealand to challenge conventional understandings as to what counts as a “constitution.”