Book contents
- Amending America’s Unwritten Constitution
- Comparative Constitutional Law and Policy
- Amending America’s Unwritten Constitution
- Copyright page
- Contents
- Contributors
- Acknowledgments
- Introduction A Return to Constitutional Basics: Amendment, Constitution, and Writtenness
- 1 The Unwritten Constitutions of the United States
- 2 Enumerating Amendments
- 3 Change Is the Only Constant: Unwritten Amendments and the Courts
- 4 The Role of the People in Unwritten Amendments
- 5 Unwritten State Constitutions? In Search of Constitutional Communities
- 6 State Constitutions and the Interaction between Formal Amendment and Unwritten Commitments
- 7 The Drive for a National Popular Vote for the Presidency: A Case Study in Amending the Unwritten Constitution
- 8 The Trump Presidency, the Racial Realignment, and the Future of Constitutional Norms
- 9 Amending an Unwritten Constitution: Comparative Perspectives
- 10 The Unwritten Foundations of (All) Written Constitutions
- Index
10 - The Unwritten Foundations of (All) Written Constitutions
Published online by Cambridge University Press: 13 October 2022
- Amending America’s Unwritten Constitution
- Comparative Constitutional Law and Policy
- Amending America’s Unwritten Constitution
- Copyright page
- Contents
- Contributors
- Acknowledgments
- Introduction A Return to Constitutional Basics: Amendment, Constitution, and Writtenness
- 1 The Unwritten Constitutions of the United States
- 2 Enumerating Amendments
- 3 Change Is the Only Constant: Unwritten Amendments and the Courts
- 4 The Role of the People in Unwritten Amendments
- 5 Unwritten State Constitutions? In Search of Constitutional Communities
- 6 State Constitutions and the Interaction between Formal Amendment and Unwritten Commitments
- 7 The Drive for a National Popular Vote for the Presidency: A Case Study in Amending the Unwritten Constitution
- 8 The Trump Presidency, the Racial Realignment, and the Future of Constitutional Norms
- 9 Amending an Unwritten Constitution: Comparative Perspectives
- 10 The Unwritten Foundations of (All) Written Constitutions
- Index
Summary
This chapter begins from the proposition that the conventional narrative suggests that there are unwritten constitutional rules and principles that exist adjacent to, or supplementary to, the official written constitution. But the spatial metaphor suggested by this framing of the issue is mistaken, the author says. He notes that we have learned from the enduring jurisprudential contributions of Hans Kelsen and H. L. A. Hart that the status as law of a constitution rests on a necessarily unwritten social practice establishing what counts as the constitution. This unwritten social practice might exclude some of what the official written document includes and might include some rules or principles that are not found in the official written document, but the basic point is that a written document’s status as “the constitution” rests itself on unwritten foundations, making the idea of an unwritten constitution central to the very idea of constitutionalism.
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- Amending America's Unwritten Constitution , pp. 217 - 234Publisher: Cambridge University PressPrint publication year: 2022