The 'Other' Trinity: America's Three Constitutions
As the Democrats in Congress mull over the idea of increasing the size of the Supreme Court (the Constitution does not specify the number of justices) or of ending the filibuster (nowhere mentioned in the Constitution), it may be useful to think about the American political system in a broader way. A political majority has the legal right to change the number of Supreme Court justices, but there are other important factors than the letter of the Constitution. I want to briefly describe the three American “constitutions”: first, the actual written Constitution, ratified in 1787 and amended just 27 times over 234 years; second, what might be called the “small-c” constitution, the set of norms, habits and procedures that are not enumerated in the written Constitution but have achieved a deep rootedness in American civic life; and third, the ways the American people actually “constitute” their lives, more often outside the realm of civics, but which have to be taken into account by anyone wishing to lead or shape American life.
We the people - the Big "C" constitution
The Big "C" Constitution.(Shutterstock)
The Formal Constitution
The formal 1787 Constitution needs little description. There it is, 4,534 words, encapsulating the civic intentions of 55 white men who deliberated, debated, argued, and above all compromised for 115 days at Independence Hall in Philadelphia, windows closed, to hammer out “a more perfect union” for 3.9 million Americans, one in five a slave. No women were present, no African Americans free or enslaved, no Native Americans, no Jews or Muslims. The delegates, called by Jefferson an “assembly of demigods,” were all white privileged men. The Constitution established a new, stronger national government for the United States. It created two houses in Congress, and established minimum eligibility requirements for the president and for senators and members of the House of Representatives. It enumerated the powers of each of the three branches of government. It set procedures for ratifying a treaty, presidential vetoes of Congressional legislation, and the manner in which a veto could be overturned by a two-thirds vote in both houses. With, as they said in the 18th century, a long train of et ceteras.
The small-c constitution is the set of norms, habits, and procedures that are not enumerated in the written Constitution but have achieved a deep rootedness in American civic life
The “Small-c” Constitution
The capital-C constitution was a general recipe for a new national government, but it did not descend into particulars on many important questions. It did not create a presidential cabinet, for example, but some such entity is hinted at in Article 2, Section 2, which says the president “may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices.” George Washington established a four-member cabinet (State, War, Treasury, and Attorney General) a few months into his first term, and though some presidents have made much greater use of their cabinets than others, no subsequent president has dared to dispense with this American institution, now numbering 24 members. The capital-C Constitution did not authorize the Supreme Court to determine which laws were constitutional and which violated provisions of the Constitution (judicial review). Chief Justice John Marshall single-handedly instituted judicial review in 1803 in the famous case Marbury v. Madison, when he decided, without explicit Constitutional authority, that one clause of the Judiciary Act of 1789 was unconstitutional and therefore void, and declared, in what amounts to a judicial declaration of independence, “It is emphatically the province and duty of the Judicial Department to say what the law is.” Thus, one of the central bulwarks of American civic life was not established in the capital-C Constitution, but it has achieved not just quasi-constitutional status in the United States but is so deeply rooted and uniformly accepted that nothing could possibly displace it now.
Supreme Court Chief Justice John Marshall_by_Henry_Inman,1832
A 1932 portrait of the fourth Chief Justice of the Supreme Court, John Marshall.(Shutterstock)
The Constitution requires the president to advise Congress on the state of the union from time to time, but the annual ritual of the president riding up to Capitol Hill to address a joint session of Congress, with an endless series of standing ovations, special guests in the gallery, the Supreme Court justices all sitting in the front row, the joint chiefs of staff present and accounted for, belongs to the small-c constitution. Although Washington and John Adams delivered their annual messages personally before Congress, Thomas Jefferson broke that precedent before it could get deeply rooted in American civic life, because he thought it smelled of monarchy, and it wasn’t until Woodrow Wilson (1913) that the modern habit (now something of a political circus) was initiated, and rarely avoided since.
Perhaps more to the point for the politics of 2021, the capital-C Constitution does not specify the number of Supreme Court justices. Congress gets to set the number through routine legislation. It could be nine, 19, or 90, and it has been set at six, five, seven, nine, and 10 in the course of American history. If the Democrats today forced through a court-packing bill raising the number of justices to 12, for example, they would not be violating the capital-C Constitution, which is silent on this question, but they would be violating what turns out to be a very deeply rooted and seemingly sacrosanct provision of the small-c constitution. This alone illustrates the immense power of the unratified small-c constitution. Even the Democrats who wish to reshape the balance of the Supreme Court by creating new positions they can fill with progressive justices sense that they are tiptoeing around a very important American taboo, as Franklin Roosevelt discovered in 1937, when he tried to raise the number of justices so that he could install individuals who would not strike down key provisions of the New Deal.
New Deal and the campaign to pack the Supreme Court
A political cartoon from 1937 illustrates the dust up around Franklin Roosevelt's effort to raise the number of Supreme Court justices in order to protect key provisions of the New Deal.
The 'Other' Trinity: America's Three Constitutions
As the Democrats in Congress mull over the idea of increasing the size of the Supreme Court (the Constitution does not specify the number of justices) or of ending the filibuster (nowhere mentioned in the Constitution), it may be useful to think about the American political system in a broader way. A political majority has the legal right to change the number of Supreme Court justices, but there are other important factors than the letter of the Constitution. I want to briefly describe the three American “constitutions”: first, the actual written Constitution, ratified in 1787 and amended just 27 times over 234 years; second, what might be called the “small-c” constitution, the set of norms, habits and procedures that are not enumerated in the written Constitution but have achieved a deep rootedness in American civic life; and third, the ways the American people actually “constitute” their lives, more often outside the realm of civics, but which have to be taken into account by anyone wishing to lead or shape American life.
We the people - the Big "C" constitution
The Big "C" Constitution.(Shutterstock)
The Formal Constitution
The formal 1787 Constitution needs little description. There it is, 4,534 words, encapsulating the civic intentions of 55 white men who deliberated, debated, argued, and above all compromised for 115 days at Independence Hall in Philadelphia, windows closed, to hammer out “a more perfect union” for 3.9 million Americans, one in five a slave. No women were present, no African Americans free or enslaved, no Native Americans, no Jews or Muslims. The delegates, called by Jefferson an “assembly of demigods,” were all white privileged men. The Constitution established a new, stronger national government for the United States. It created two houses in Congress, and established minimum eligibility requirements for the president and for senators and members of the House of Representatives. It enumerated the powers of each of the three branches of government. It set procedures for ratifying a treaty, presidential vetoes of Congressional legislation, and the manner in which a veto could be overturned by a two-thirds vote in both houses. With, as they said in the 18th century, a long train of et ceteras.
The small-c constitution is the set of norms, habits, and procedures that are not enumerated in the written Constitution but have achieved a deep rootedness in American civic life
The “Small-c” Constitution
The capital-C constitution was a general recipe for a new national government, but it did not descend into particulars on many important questions. It did not create a presidential cabinet, for example, but some such entity is hinted at in Article 2, Section 2, which says the president “may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices.” George Washington established a four-member cabinet (State, War, Treasury, and Attorney General) a few months into his first term, and though some presidents have made much greater use of their cabinets than others, no subsequent president has dared to dispense with this American institution, now numbering 24 members. The capital-C Constitution did not authorize the Supreme Court to determine which laws were constitutional and which violated provisions of the Constitution (judicial review). Chief Justice John Marshall single-handedly instituted judicial review in 1803 in the famous case Marbury v. Madison, when he decided, without explicit Constitutional authority, that one clause of the Judiciary Act of 1789 was unconstitutional and therefore void, and declared, in what amounts to a judicial declaration of independence, “It is emphatically the province and duty of the Judicial Department to say what the law is.” Thus, one of the central bulwarks of American civic life was not established in the capital-C Constitution, but it has achieved not just quasi-constitutional status in the United States but is so deeply rooted and uniformly accepted that nothing could possibly displace it now.
Supreme Court Chief Justice John Marshall_by_Henry_Inman,1832
A 1932 portrait of the fourth Chief Justice of the Supreme Court, John Marshall.(Shutterstock)
The Constitution requires the president to advise Congress on the state of the union from time to time, but the annual ritual of the president riding up to Capitol Hill to address a joint session of Congress, with an endless series of standing ovations, special guests in the gallery, the Supreme Court justices all sitting in the front row, the joint chiefs of staff present and accounted for, belongs to the small-c constitution. Although Washington and John Adams delivered their annual messages personally before Congress, Thomas Jefferson broke that precedent before it could get deeply rooted in American civic life, because he thought it smelled of monarchy, and it wasn’t until Woodrow Wilson (1913) that the modern habit (now something of a political circus) was initiated, and rarely avoided since.
Perhaps more to the point for the politics of 2021, the capital-C Constitution does not specify the number of Supreme Court justices. Congress gets to set the number through routine legislation. It could be nine, 19, or 90, and it has been set at six, five, seven, nine, and 10 in the course of American history. If the Democrats today forced through a court-packing bill raising the number of justices to 12, for example, they would not be violating the capital-C Constitution, which is silent on this question, but they would be violating what turns out to be a very deeply rooted and seemingly sacrosanct provision of the small-c constitution. This alone illustrates the immense power of the unratified small-c constitution. Even the Democrats who wish to reshape the balance of the Supreme Court by creating new positions they can fill with progressive justices sense that they are tiptoeing around a very important American taboo, as Franklin Roosevelt discovered in 1937, when he tried to raise the number of justices so that he could install individuals who would not strike down key provisions of the New Deal.
New Deal and the campaign to pack the Supreme Court
A political cartoon from 1937 illustrates the dust up around Franklin Roosevelt's effort to raise the number of Supreme Court justices in order to protect key provisions of the New Deal.
English
Arabic
French
Spanish
Portuguese
Deutsch
Dutch
Italiano
Russian
Romaian
Portuguese (Brazil)
Greek