The Status of Unwritten Constitutional Conventions in the United States

Citation:

Whittington, Keith E. “The Status of Unwritten Constitutional Conventions in the United States”. University of Illinois Law Review 2013.5 (2013): , 2013, 5, 1847-1870. Print.

Abstract:

A.V. Dicey popularized in the British constitutional tradition the idea of unwritten constitutional conventions, the political practices that regulate the exercise of sovereign power by government officials and defines public duties and obligations that supplement judicially enforceable constitutional law. The applicability of the idea in the American context, where a written constitutional text and extensive constitutional law are so prominent, has long been unclear. This paper argues that the United States likewise governs through unwritten constitutional conventions, that there is a "constitutional morality" that delimits acceptable political action and regulates the making of public policy. Nonetheless, conventions sit awkwardly in the American constitutional tradition and are under constant pressure. Precisely because conventions purport to constrain political discretion in ways that are not accounted for by the constitutional text, the interpretation of that text and the proliferation of constitutional law always threatens to erase those constraints.

Last updated on 07/11/2014