English political customs, traditions, and institutions profoundly shaped the American founding, so much so that the major difference between them was that, following the break with Britain, the Americans “wrote down” those customs, traditions, and institutions into their constitutions and statutory laws.1 In 1760, both the British people and the American colonists held that the unwritten English Constitution had created and guaranteed the “rights of Englishmen.”2 This ensemble of abstract principles, maxims, and institutional relations gradually came to supersede the comparatively specific claims based on the individual charters of the separate colonies. For example, when the royal governor of Georgia rejected the man elected by the Georgia Assembly as speaker, John Zubly, in 1772, Zubly first cited the history of parliament as support for the assembly’s right to choose whomever it wanted as a presiding officer and then added: “[A]n Englishman I should think [is] entitled to English laws, which I suppose implies Legislation any where and every where in the British dominions, that this right is prior to any charter or instruction, and is held not by instructions to a Governor but is his [in this instance, the colonist’s] natural right.”3

In this Introductory chapter to “Amending America’s Unwritten Constitution,” the editors invite readers to consider the puzzle presented in the book: How to amend America’s unwritten constitution? The editors undertake a systemic inquiry into each of the major themes raised by the puzzle: What is a “constitution,” what is “America’s” constitution, what does it mean to “amend” a constitution, and how might we identify an amendment to an “unwritten” constitution, specifically the unwritten constitution of the United States. As the editors set out to answer these questions, they survey the existing literature in the field to lay the foundation for the chapters to follow. They introduce the chapters as well as how each of them illuminates the answer to the major thematic questions raised and explored in the book. What results is ultimately both a proper introduction to this book and also an important scholarly resource to understand constitutional change in the United States.

In this chapter, the author offers a comparative outlook on whether and how we might understand the act of “amending” America’s unwritten Constitution. Drawing upon examples from the United States and the United Kingdom, the author argues that the unwritten rule for amending an unwritten constitution is “Just Do It.” Unwritten constitutions are amended when relevant political actors simply ignore existing conventions or taken-for-granted propositions about the constitutional order. But, for such an action to lead to an “amendment,” the change must “stick” – subsequent actors must either treat the prior convention as now merely optional or, more strongly, treat the new practice as a new convention. One condition for “sticking,” he explains, is that those who breach the prior convention offer an explanation for the breach that (a) seems reasonable at the moment of breach and that (b) identifies a large enough class of similar occasions for breach in which departing from the convention would also seem reasonable. Such explanations provide the basis for the sense of obligation (or, sometimes, the sense of “optionality”) that characterizes elements of unwritten constitutions.

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.

When we use the term “amendment,” we are analogizing changes that happen outside the four corners of the text to the those that happen within it – and we know that the inside, textual ones happen through specified procedures that have a democratic component. The amendment idea thus suggests democratically legitimate change – a change carried out by the proper procedures, in recognizable ways. Moreover, the term “amendment” generally connotes legitimacy – not just a change, but a change made according to the rules and one that leaves the basic endeavor of democratic constitutionalism in place. If Congress or the president simply began violating the constitution, for instance, few would reach for the word “amendment” to describe what was happening. The idea of amendment also evokes something persistent and distinct from the constant tussle and fluctuations that characterizes ordinary politics. The author therefore proposes that when we talk about amending America’s unwritten Constitution, we are not typically thinking about evolution in our practices and understandings, but are trying to describe a special set of durable changes that we ought to regard as democratically legitimate.

The first challenge in understanding the courts’ role in unwritten amendments is definitional. “Unwritten amendments” could be understood as overlapping with, but not identical to, amendments to an “unwritten constitution.” Or they could be amendments to the written constitution that leave no trace on the text of the written constitution. In this chapter, the author focuses on the latter in the hopes that it will illuminate the role of the courts. The undeniable reality is that at various times, the Constitution, or various provisions of the Constitution, has been understood in different ways. When those understandings might be considered “unwritten amendments,” however, is not immediately obvious. The author therefore begins by considering several possible definitions of that term she hopes will then help move us toward a more robust understanding of the role of the courts in interpreting, constructing, or participating in “amending” the Constitution.

For present purposes, I take “America’s Unwritten Constitution” to refer (at least in some measure) to the norms, conventions, and practices that have developed in America to give meaning to, and fill in the gaps of, the constitutional text that was penned in 1787, ratified by a requisite number of states shortly thereafter, and formally amended by the Bill of Rights in 1791 and seventeen times during the two-and-a-quarter centuries since. One important constraint on the nation’s Unwritten Constitution is that is must, at some acceptable level, accommodate itself to the written document. A related feature of the Unwritten Constitution is that, as with the formal text, abiding aspects of the unwritten version need to be anchored in some kind of political foundation. These two features of the Unwritten Constitution – a fidelity to the document itself and a grounding in democratic processes – can be helpfully appreciated by examining another crucial component of today’s Unwritten Constitution, and one as to which federal courts have generally been much less central in determining the meaning and operation of the written Constitution’s provisions: the way we select Presidents in America.

The unwritten constitution of the United States includes the Aristotelian and Gödelian Constitutions, the various constitutions in and outside of the courts, and the features of distinctive constitutional regimes. This chapter details these unwritten constitutions and highlights the empirical dimensions of constitutionalism in general and of American constitutionalism in particular, emphasizing how the empirical and normative dimensions of constitutionalism cannot be separated. Constitutionalism is an intricate blend of law and politics, not a means of separating law from politics. Written and unwritten constitutional politics intertwine with written and unwritten constitutional law in ways ignored by both legal and political science versions of the law/politics distinction. This chapter also explores some dynamics in contemporary constitutional politics in the United States and shows that changes in unwritten constitutional politics have not yet been captured by written or unwritten constitutional law. Bringing the structure of constitutional politics back into the structure of constitutionalism promises better constitutional analysis and, perhaps, better constitutional practice.

The central claim of this chapter is that racial politics, stemming from the racial realignment between the Democratic and Republican Parties that began much earlier than many scholars appreciate, has played a critically important and yet undernoticed role in the breakdown of constitutional norms in recent decades. An increasing number of American legal scholars are writing about the importance of constitutional norms, also sometimes called constitutional conventions. Such norms are not legal in status, but they impose obligations of compliance on government officials that can be as great as legal obligations – they guide and constrain how officials “exercise political discretion.” Although constitutional norms are not required by the letter of the US Constitution, they are appropriately denominated “constitutional” because they help vindicate the spirit – or the purposes – of the Constitution. To violate a constitutional norm without sufficient public-regarding justification is not unconstitutional, but it “is anticonstitutional.” Constitutional norms were placed under great pressure during the presidency of Donald J. Trump.

In this chapter, Sanford Levinson examines the practice and implication of appending amendments to the end of the Constitution and inquires how many times the Constitution has amended. The presumptively correct answer number of amendments, at present, is twenty-seven, but those are only textual amendments to the Constitution. “How many times has the United States Constitution been amended” generates what Wittgenstein well described as “mental cramps.” His own belief was that one could cure these cramps by dissolving many traditional questions of philosophy. We could do the same if we adopted a truly minimalist understanding of “constitutionalism” that allowed, for example, anyone designated as the Ruler to rule by absolute discretion. One might proffer this as a variant of Hobbesian constitutionalism, whereby the sovereign people, realizing that nothing else can in fact guarantee them the security they yearn for, delegate their powers to an all-powerful Leviathan. An alternative is what has come to be identified as “liberal constitutionalism,” with the attached meaning of governments that are established through institutions created (and limited) by the constitution itself.

When Ezra Pound launched his writing career in London in 1908, English copyright was governed by an Act of 1844, which required registration of works at Stationers’ Hall in order for copyright to be secured. The Act was soon replaced, however, by the Imperial Copyright Act of 1911, under which copyright protection was extended to works upon creation without the need for registration. Notable among the changes effected by the Act of 1911 was the extension of the term of copyright to life plus fifty years (subject to certain exceptions). Previously, the law fixed the term of copyright at either forty-two years from first publication or the life of the author plus seven years, whichever proved the longer. Two provisions allowed for compulsory licenses as a limitation on copyright.