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The literature on America’s unwritten constitution is rigorous and compelling, but it tends to focus almost entirely on how the federal Constitution has evolved through informal processes. In this chapter, I argue that our understanding of America’s unwritten constitution would be improved if we broadened the inquiry to include state constitutions. Unlike the federal Constitution, where Article V’s near-impossible amendment rules force essentially all reforms into informal pathways, the states have designed amendment rules and facilitated political cultures that encourage frequent formal amendment of constitutional text. Consequently, to the extent that unwritten constitutional commitments exist in the states, they are not the product of necessity, and they may shed new light on how constitutional rules evolve. In this chapter, I show that in various significant areas, states have indeed fostered robust unwritten constitutions and that state constitutionalism is characterized by a complex, competitive, and highly contextual interaction between codified and unwritten constitutional commitments.
It is well known that the US Constitution has been amended twenty-seven times since its creation in 1787, but that number does not reflect the true extent of constitutional change in America. Although the Constitution is globally recognized as a written text, it consists also of unwritten rules and principles that are just as important, such as precedents, customs, traditions, norms, presuppositions, and more. These, too, have been amended, but how does that process work? In this book, leading scholars of law, history, philosophy, and political science consider the many theoretical, conceptual, and practical dimensions of what it means to amend America's 'unwritten Constitution': how to change the rules, who may legitimately do it, why leaders may find it politically expedient to enact written instead of unwritten amendments, and whether anything is lost by changing the constitution without a codified constitutional amendment.
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