Is It in the Constitution?

How much does an entrenched constitutional text have to do with, you know, the actual constitution? I have argued (here and here for example) that a text is, at best, a partial and incomplete statement if what a constitution really is. It is quite possible to have a constitution without an entrenched text. But even if a polity does in fact have an entrenched constitutional text, much of its constitution will be found elsewhere ― in ordinary legislation, in constitutional conventions, in judicial decisions. A recent debate (in the U.S. context of course) between Eric Posner and Will Baude provides further support for my claim.

Prof. Posner argues that

the [U.S.] constitution in practice is just what the various branches of government agree are the rules of the game at any given time. In their hands, the founding-era document is little more than a rhetorical flourish, used strategically.

Now this, I suspect, is an exaggeration. If nothing else, the constitutional text is surely relevant to what “the various branches of government agree” on. And it would be difficult for them to agree on something that flatly contradicts the text, at least when it is clear enough.

But for my purposes, it is prof. Baude’s reply that is most interesting. Prof. Baude

see[s] our government strictly following the founding-era document a huge amount of the time, even when its answers are a little wacky. (How do we know that those 500-some folks who keep telling us what to do are “Congress”? How many Representatives and Senators are there, and how many votes do they get? When do we hold elections? How is the President selected? How do we know that federal law trumps state law? Etc.)

The remarkable thing about prof. Baude’s list of examples demonstrating the continued relevance of the “founding-era document” is that most of them are not actually in that document. That the “folks who keep telling us what to do are ‘Congress'” is indeed the indubitable consequence of Art. I, s. 1 of the U.S. Constitution, which provides that “All legislative powers herein granted shall be vested in a Congress of the United States.” The constitutional text also specifies that “[t]he Senate of the United States shall be composed of two Senators from each state” (Art. I., s. 3, § 1) and that “each Senator shall have one vote” (a clause that appears both in the original text of Art. I., s. 3, § 1 and in the 17th Amendment). But then, things get complicated.

The founding-era document does not say, for instance “how many Representatives … there are,” nor “how many votes they get.” All that it says is that “[t]he number of Representatives shall not exceed one for every thirty thousand, but each state shall have at least one Representative” (Art. I, s. 2, § 3). It also specifies the initial distribution of representatives between the states ― but the current number of representatives is fixed by ordinary legislation. And nothing in the founding-era document speaks to how many votes each representative has. The one-man-one-vote principle seems to be simply assumed. 

Similarly, the U.S. Constitution does not have much to say on the subject of election dates. With respect to congressional elections, it provides that

[t]he times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof; but the Congress may at any time by law make or alter such regulations, except as to the places of choosing Senators.

As for presidential elections, the constitutional text provides that

[t]he Congress may determine the time of choosing the electors, and the day on which they shall give their votes; which day shall be the same throughout the United States.

Election dates, as well the number of representatives, are regulated by ordinary law.

The founding-era document provides much more detail about the manner in which “the President is selected.” Yet reading it will not make one understand the crucial fact about presidential elections in the United States ― that these are popular, democratic elections in effect if not in form. The U.S. Constitution provides that “[e]ach state shall appoint, in such manner as the Legislature thereof may direct, a number of electors,” (Art. II, s. 1, § 2), who then vote for the President and Vice-President. It is a constitutional convention, not the text, that requires states to hold presidential elections at which all citizens can vote, and to make “electors,” originally expected to be the people choosing the President, mere mouthpieces of the voters.

Finally, while the constitutional text does provide that

This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding (art. VI, § 2)

exactly what it means for federal law to be “supreme” over state law is not so clear. Federal law trumps state in the event of a conflict ― but when is there a conflict? Is there, for instance, a conflict between a permissive federal and a restrictive state law? This is not an obvious question, and the answer to it must be found in judicial decisions rather than the constitutional text.

In his response to prof. Baude, prof. Posner insists that

[T]he modern system of governance in this country is vastly different from what existed in the eighteenth and nineteenth centuries. If it is consistent with the text, that can only be because the text is so vague and full of holes, undefined terms, and so on.

That is not entirely so. The text is specific on some points at least. But, like any constitutional text, it must be supplement by legislation, conventions, and judicial decisions in order to make for a viable system of government. What is in a constitutional text matters. So does what isn’t.

Author: Leonid Sirota

Law nerd. I teach constitutional law at the Auckland University of Technology Law School, in New Zealand. I studied law at McGill, clerked at the Federal Court of Canada, and then did graduate work at the NYU School of Law.

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