The Unwritten Constitution
The unwritten constitution are those processes of our government that are considered an
essential part of the system yet they are not actually in the Constitution. These are
customs and precedents that have been doing for so long that many citizens think these
are, in fact, laws yet they are not.
Parts of the Unwritten Constitution:
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The Cabinet - George Washington's first task as President of the United States
was to appoint Secretaries (heads) of each of the executive departments. He
appointed Alexander Hamilton Secretary of the Treasury, John Jay Secretary of
State until Thomas Jefferson returned from Europe and Henry Knox was made
Secretary of War. John Adams was the Vice President. Washington took things a
step further when he called regular meetings to get the advice of these men. He
therefore created what became known as the Cabinet. The formation of a cabinet
to advise the president is a precedent set by George Washington. The Constitution
neither required nor suggested Washington do this. Since then every president has
had one. The today the cabinet is much lager and is comprised of the heads of the
various federal agencies and departments as well as key advisors.
The Electoral College Promise - When the Electoral College originally voted it
was on its own. No one would tell the college how to vote. This was a rather
undemocratic method of electing a President. In 1824 the nation, for the first time,
took a popular vote. The electors then voted based upon the popular vote of each
state. The fact that the electoral college votes by state according to the majority of
the popular vote of that state is not in the constitution. In fact it is merely a
promise and historical precedent.
Judicial Review - The power of the Supreme Court to declare laws
unconstitutional is not in the constitution yet it has become one of the basic
tenants of the checks and balances system. As previously discussed judicial
review is a result of precedent set in the Marbury v Madison decision.
Political Parties - While today we rely on political parties to help us choose
candidates for president and all other offices there is no mention of this in the
constitution.
Congressional Committees - Congress uses a committee system to wade through
and made reccomendations on bills. Each Senator and Congressman belongs to
several committees and develops expertise in that area. Committees have
enormous power because if a committee chairman pigeonholes (refuses to allow
debate or a vote) a bill or the committee makes a negative recommendation then
the bill dies in committee. There is no mention of this committee system in the
constitution. It was developed because it is a more efficient way to run the
legislative branch.
Term Limits for President (**Note - This is no longer a part of the unwritten
Constitution, it is now a written part of the Constitution!)As an example of how
important the unwritten constitution has become one might cite the example of the
two term limit. Our first President George Washington refused to run for a third
term. He felt that to rule for longer than that might give one man too much power
and influence. In doing so he set a precedent that was followed until Theodore
Roosevelt. Roosevelt also followed the precedent set and when he was finished
with his second term did not run again. A young man (50) Roosevelt continued to
be active in his political party. When Taft was President (Roosevelt's choice by
the way) Roosevelt became enraged at the way the new President did things. In
response he ran for President under a new third party named the "Bull Moose
Party." Roosevelt split the vote with Taft and a Democrat, Woodrow Wilson,
was elected.
It took another Roosevelt, Franklin Delano Roosevelt (FDR), to violate the
precedent a second time. FDR ran for, and won a third and a fourth term. FDR
died before serving his fourth term and his Vice President, Harry S. Truman, took
office. Many Americans, while loving FDR, recognized that the two term limit
should be protected. FDR was President for over a decade. In 1951 the 22nd
amendment was ratified setting a two term limit. In doing this we made a part of
the unwritten constitution a part of the written constitution.