an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
The process of nominating and selecting a president is one of the best examples of our unwritten Constitution--a set of customs that are not defined by the text or by case law. For example:
1. Iowa holds the first nominating caucus and New Hampshire holds the first primary.
Though this is now a familiar ritual, this particular lineup did not become established until 1976. New Hampshire was a significant test starting in 1952 (or 1968, some would say), but Iowa did not become a big deal until Jimmy Carter used the caucus to launch his long-shot campaign. If we were designing a nomination process from scratch, we would probably not pick Iowa and New Hampshire--they are not demographically representative and skew policy (e.g., ethanol subsidies) in not-so-great ways.
2. The opposition party holds its convention before the incumbent party.
I'm not sure when this practice began, but it can be criticized as giving those in power and advantage that they do not deserve. Why should the President go last? It's not as if he has the burden of proof like a criminal prosecutor giving a closing argument.
3. The presidential candidates appear in joint debates.
This became a regular event only in 1976. (In retrospect, that was a watershed year for presidential politics.) It would be unthinkable for President Obama to refuse to debate his opponent the way, say, LBJ did in 1964.
I suppose my only objection to this, would be the term, "unwritten Constitution"; Unwritten constitutions are for nations without written constitutions. This is just tradition, and as you note, recent tradition at that. It only stands until it falls, with no formal process for knowing which it has done until after the fact.
It has none of the characteristics which make a constitution a constitution.
Brett, your argument is pretty much that unwritten constitutions can't exist. Maybe that's true; it's at least arguable. But if they can exist, then well-established traditions are precisely what make them.
The fact we have an "unwritten Constitution" doesn't mean we just have one. Mark Field is write as to the various meanings of the term "constitution." The reference to "recent" is interesting -- how long does it take? On this issue, it does seem the practices have some expected presence. They are "givens." The word has bite.
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