Unwritten Constitution

• Author: Sotirios A Barber
• Pages: 2770-2772

Page 2770

When the American colonists charged that some British colonial policies and practices were unconstitutional, they appealed to what was generally conceived as an unwritten constitutional tradition that combined the practical good sense of English experience with standards of conduct that were simply, or naturally, equitable and right. Though the principles of this constitutional tradition were scattered among state documents, reported cases of the COMMON LAW, treatises, and other writings, their status derived not from having been written or enacted but from their perceived origin in sources like custom, divine will, reason, and nature. These principles were thought superior to acts of Parliament, whose status did depend on their enactment.

While invoking unwritten HIGHER LAW, however, the colonists were implicitly challenging its efficacy. To the charge of TAXATION WITHOUT REPRESENTATION, Parliament responded with the theory of virtual representation. The colonists rejected this DOCTRINE and insisted that as a practical matter responsible government depended on the ballot, not on government's respect for natural justice. Belief in a higher law thus coexisted with a pessimistic view of human nature and a corresponding distrust of government.

Unlike Britain's constitution, the American Constitution was established through RATIFICATION, a form of enactment. As the supreme law of the land this enacted Constitution consigns appeals from its authority to the category of extralegal considerations. But foreclosing the constitutionality of appeals from the highest written law did not depreciate unwritten law as such, for the written or enacted law could still reflect unwritten standards of natural justice and reason whose status did not depend on enactment. This was the claim of those who campaigned for ratification, as was to be expected from the rhetoric typical of public attempts to persuade.

This is not to say that anyone saw the proposed constitution as entirely consistent with the dictates of reason and justice. SLAVERY and the equal REPRESENTATION in the SENATE of small and large states are examples of acknowledged compromises with contingencies that would not bend to principle. Nevertheless, the argument for ratification was full of references to higher norms as standards for evaluating constitutions, as principles behind its rules and institutions, and as objectives of the system as a whole. In THE FEDERALIST #9 and #10, ALEXANDER HAMILTON and JAMES MADISON not only presented the Constitution as an attempt to reconcile democracy with minority rights and the common good, but they also stated that the fate of democracy justly depended on that reconciliation. In The Federalist #78...