Balkinization: The Presidential Selection Process

The Presidential Selection Process

Gerard N. Magliocca

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.

Posted 12:01 PM by Gerard N. Magliocca [link]

Comments:

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.

# posted by

Brett : 12:15 PM

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.

# posted by

Mark Field : 12:23 PM

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.

# posted by

Joe : 1:26 PM

He's "right" too.

# posted by

Joe : 1:27 PM

Anyone wishing to opine on this subject should read Akhil Reed Amar's new book The Unwritten Constitution (Basic Books).

# posted by

Sandy Levinson : 2:19 PM

The book looks a tad long but interesting. Gerard N. Magliocca is discussing in at Concurring Opinions Blog.

# posted by

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