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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:

  • 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.

Imagine what life would be like in America if these customs and precedents were not used. If the President did not have a cabinet would he be an effective leader of the executive branch? Would he be able to make the right decisions? If the electoral college ignored the state popular votes would the American people accept their choice of President? How could our political system operate without political parties and how efficient would Congress be if committees did not exist? Could we reasonably expect all members of Congress to be knowledgeable about all aspects of government? The committee system lets them develop expertise in certain areas.

As an example of just how important these customs and precedents are, look at the term limit issue. When a President violated the precedent set by Washington the nation thought it was so important that we created a Constitutional Amendment to make that portion of the unwritten Constitution into a part of the written Constitution.

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