The Unwritten Constitution - Essay Example

The Unwritten Constitution The unwritten constitution Introduction The United s is governed by a set of written laws and statutes under the constitution that was developed by the framers in the pioneer years of the country. As a result, the judges in the country rely on these set of laws during different judicial hearing before judgment can be delivered. However, a set of precedents and practices have been established based on previous judgments and litigations by the courts of the country which current judges have continued to rely upon during judgment (Amar, 2011). These set of precedents are known as elements of the unwritten constitution that despite their absence from any section of the guiding document, have been continuously used to a point that they are now considered law before the country. A number of areas within the United States law proceedings have relied on previous litigations and jurisprudence in making judgments despite their absence in the constitution. For example, the meaning of the due process and the limitations on the first amendment and the right of privacy as was applied to the Roe v Wade case does not exist in any section of the constitution (Amar, 2011). Laws on the judicial review, the political parties, natural and common morality laws and values which have been cited in different judicial proceedings in the country have no place in the written constitution of the country. They have however been used in different cases as references to previous jurisprudence and precedents set by previous judgments on similar manner. In this paper, the practice of the application of the unwritten constitution in the United States will be evaluated by providing sample cases in which references were made to previous judgments that are not based on any written law in the constitution (Baker & Hedge, 2013). Unwritten constitution and the areas most affected Different departments and organs within the united states arms of government have adopted practices which are considered as common law but have no place in the American constitution. Such laws have been adopted and continue to be used based on precedents and not any written and referable section within the constitution (Pryor, 2007). The president’s cabinet is one such precedent that has been followed for ages now in the country yet the constitution has place for it. This precedent has been established and is followed today as a legal tradition due to the place of cabinet in the president’s management issues in the country. Through the cabinet, the president is capable of organizing his department and posting different departmental heads to different departments within the government (Amar, 2011). With the advice of the cabinet and the members of staff, the president has an opportunity to decide the way forward for the country during normalcy and when the country is faced with security and economic challenges. This precedent was first set by the first president George Washington when he appointed to the secretaries to head different departments in his government. Through these actions, Washington created what today has been known as the cabinet and become an integral element of every president sworn into office despite the fact that it lacks legal and constitutional backing. This is because there is no requirement or suggestion in the constitution that requires the president to form a cabinet once in office, meaning that this action was largely influenced by necessity and later became a common law in the country (Baker & Hedge, 2013). During elections in the United States, the Electoral College has been used as an influential determinant of the rightful winner of the presidential election especially in situations where the competition is tight. The Electoral College also initially voted independently without any influence from another party, an approach that was viewed to be undemocratic approach in the process of presidential election. This led to the adoption of an approach that saw the Electoral College electors vote according to the majority of vote’s case within the states (Williams, 2010). Presidential candidates who garnered the highest number of votes within a specific state in the country during the general election will thus be considered to have won the Electoral College votes. This practice was adopted by country and has been used today as a common law despite being established on precedents and not any legal basis. The benefits of the electoral college in the united states electoral process has been questioned severally but has not be abolished due to the fact that it has become a common law based just on precedents and no other written statute in the constitution (Baker & Hedge, 2013). The supreme court of the United States has powers to declare laws in the country unconstitutional and inapplicable in certain jurisdiction. Despite the fact that this power has been respected in different situations, the constitution is silent on the same and this makes it unwritten precedent that lacks a basis in the United States constitution. Though the Supreme Court has grown to become the major organ for offering checks and balance for different legal establishments and laws developed in the country, the constitution has not given it the same mandate (Amar, 2011). The precedent for judicial review as a role of the Supreme Court was instead set in the Marbury v Madison case and decisions made by in the end. In this case, the supreme acted as referee in the constitutionality of the case that was brought before it and this gave it the check and balances power despite lacking in constitutional support for the same. Candidates for presidential elections and other elections in the United States are done through the different political parties in the country (Williams, 2010). Parties like the democrats and the republican have continued to play a dominant role in the United States election despite lacking in the written constitution of the country. The origin of the use of the political parties in the election discourse of the country has been questioned and the possibility of having elections without the political parties input questioned. However, as a precedent that was set during the 18th and 19th centuries, the use of political parties in elections has become a common law that practiced across the board. Within the congress, different committees have been established to play overseeing roles for different departments within the government. These committees also study the economic, social and political environment of the United States and make recommendations on the need for certain bills to be brought to the senate. As a result, their areas of expertise influence each senator and congressional representative s given an opportunity to belong to at least one committee and this. Committees have continued to grow powerful within the senate and the congress with the roles becoming even more refined (Williams, 2010). For example, the committee chairpersons have a role in determining the progress of a specific bill within the house chambers and his support or lack of it can result to the success of failure of the bill within the floor of the house. The constitution does not mention the now powerful senatorial committees despite the powerful role that they continue to play in the country’s legal and non-legal processes. The development of the committees followed the president’s decision to invite cabinet members to assist in the process of making decisions and governing the country. The congress as a result felt the need to form committees to assist in the process of fulfilling their legislative mandate and prioritize the nation’s agenda for essential changes. The presidential term limits was not part of the country’s constitution for a very long time and was adhered to due to the precedent that had been set until it was entrenched in the constitution. It is George Washington who declined to run for a third term due to the feeling that ruling for an extended of time would result to the generation of excessively powerful presidents. The precedent that he set was followed by President Theodore Roosevelt who also did not run after the end of his second term in office despite his young age at the time of his retirement. Though he attempted to later participate in the presidential election after he felt let down by the system that succeeded him, Woodrow Wilson of the democrat party, further entrenching this custom in the country’s legal system, defeated him. In the history of the United States election, it is only franklin Delano Roosevelt (FDR) who violated this precedent and served as president for four consecutive terms though he died before completing the fourth term and was succeeded by Harry Truman as the president. Due to the decision of FDR to serve for more than two terms, the need to amend the 22nd amendment and made the two terms limit legal and constitutional was conceived and implemented. This made this previously unwritten precedent in the country a written part of the united states constitution that is today followed under the 22nd amendment to the country’s laws. The law of due process was conceived from the Magna Charta and has been considered as a guiding principle in law that prevents the government from depriving a citizen their rights. The due process has been accepted based on various precedents that have been established as a system of human rights that are based on the moral principles and embodies the feeling and desire of the people who live in a civilized society. It is due process in totality that provides basis for what is right, fair and just within the society and within the legal applications when handling criminal and civil cases. In the face of the ratification of the ninth amendment that lacks any direction on handling un-enumerated rights and the absence of the 14th amendment that has the due process clause, the constitutional construction of the due process cannot be endorsed by the originalists (McCutcheon, 2013). Unwritten constitutional precedents in the United States A number of cases have been determined based on unwritten laws and principles within the United States and these involve different areas of the legal process. For example, cases have been determined on the application and the meaning of the due process, the limitations on the first amendment freedoms and the right to privacy whose determination before the courts has been based on the unwritten common laws of the country. According to the well-established constitutional rights, the government of the United States has no basis to interfere with the basic and personal decision of its citizens. These decisions include but not limited to personal decisions involving parentage, number of children, choice of spouse among other private choices and decisions. One of the rights of the people which has continuously been threatened by both government and lobby groups yet it was reaffirmed by the united states Supreme Court is the right to abortion. This formed the basis of the popular Roe v Wade case that illustrated the unwritten laws in the rights of privacy in the country. According to a Supreme Court judgment that was made in 1891, the rights of privacy were extended to various other areas including the activities of relationship, procreation, child bearing and education. This was not covered under the constitution yet the Supreme Court set it as a precedent through this landmark ruling. For example, in Griswold v Connecticut, the Supreme Court determined that the constitutional rights to privacy of the American citizens included their rights to make decision to birth control methods and their applications (Caress & Kunioka, 2012). This ruling was based on previous precedents on which the decision of a parent to educate their children through the standard American educational programs or a private approach was upheld. These cases created what the court referred to as the zone of privacy that could not be ignored and violated by the government in whichever way (McCutcheon, 2013). The core principle of privacy and liberty of women was applied during the 1973 landmark ruling by the Supreme Court in which unwritten laws and principles were applied from the previous precedents of the right to privacy. Consequentially, the court upheld that the constitutional rights to privacy included their rights to have an abortion to use contraceptive as deemed fit by them. This case relied heavily on previous precedents such as Eisenstaedt v Baird and Griswold v Connecticut. This ruling thus compelled the government to ensure that the privacy of the accused remains a compelling interest in any case that hinges on decisions made by the citizens. The development of social media has led to its integration into several spheres of work and life. The internet has also progressed into an interactive channel of communication where private and personal information are shared. Access to such confidential information from such sites has been regulated by various acts of parliament and laws (Root, 2013). The expansion of social media has seen its use grow not only in private organizations but also in government offices. This growth has necessitated the need for the government to formulate policies, which can enable them safeguard, their private information. Social media has been a major target for terrorist as the user ignores the basic internet security practices. As such, marauding malwares have been used by the criminals to collect information from the government and private companies (Caress & Kunioka, 2012). Just like social media and email addresses, telephone records are made of more intimate and personal information. The government can at times access such information whenever the prevailing security situation demands for it. The growth of brokers who are able to access private phone books has exposed the lack of privacy that mobile phone users are exposed to. Marketing companies who need such information whenever they plan to launch a new product have used such data. According to the report presented to the congress by Ruane in 2008, the illegal access of private conversation and phone book data by phone brokers has resulted into legal problems. As a result, a legislative enactment that controls and limits the powers of the brokers to access private information has to be enacted (Re, 2014). The first amendment to the United States constitution prohibited the congress from enacting laws that would affect the right of the people to profess their religion and their freedom of speech. Due to the previous deliberate efforts by the government to suppress the political speech, the first amendment was developed to protect the people against government harassment and punishment for exercising their freedom of speech. However, precedents have been set which has affected the applicability of the first amendment based on laws which are not within the constitution (Kozel, 2013). For example, speeches that incite illegal activities and subversive speech has been used in different court cases despite its absence in the constitution. Fighting words that impose or provoke instant breach of law and peace have also been applied as a limitation to the first amendment of the constitution (Caress & Kunioka, 2012). For example, in the case of miller v California, hardcore pornography that is labeled as obscene was punished and the first amendment rights of the defendant was restricted based on precedents and not provisions of the constitution. This was done despite the lack of constitutional definition and description of obscenities but based on the previous precedents in which obscene was narrowed to vulgar and unfathomable acts as witnessed in Cohen v California (Re, 2014). The government as the institution with sole authority over airwaves has unwritten control over the materials that are broadcasted on radio and television. As the sole owner of the airwaves, the government should regulate the materials and speeches passed to the public though this has been contested in different situations. For example, in the FCC v Pacifica foundation, Supreme Court upheld a government ban on the broadcast of vulgar words. Though the words that were banned on this ruling are protected by the constitution according to the first amendment, the unwritten precedents have in most cases considered them unconstitutional and un-procedural (McCutcheon, 2013). Limitations to the first amendment based on unwritten principles have also been applied to political funding for presidential candidates. The freedom of speech protects the right of people to spend their money and funds on different candidates at will. However, this was suspended during the Buckley v Valeo in which the Supreme Court provided the legislature to impose restriction on the amount of political funding to candidates (Reichard, 2013). This is because this contribution can be morally considered as bribes and ways of influencing the political and economic policies of the candidates once they are elected. Despite the constitutional protection of right of the citizens to picked and burn banners as a way of expressing themselves, the unwritten precedents prevents anybody from burning the constitution as witnessed in Texas v Johnson case (Linton, 2012). Unwritten natural law Natural law is a moral theory that derives law applications from life consideration and making comparison with merits and standards available. Most laws of natural theory are determined by nature and are not captured by the constitution. When the natural laws are applied, nature as opposed to the facts of the case is applied in the determination of the cases. In most cases, natural laws are compared to the positive laws that are developed by the legislative arms of the government to govern the society and the state (Sharma & Glennon, 2013). Though the United States Supreme Court has demonstrated reluctance in the application of the universal principles, precedent exists where cases have been argued based on non-written laws of nature. For example, in the case of Chisholm v Georgia, the court allowed the citizen to sue the state of Georgia not because article III of the constitution allows but because of the principle of general jurisprudence as was highlighted by Justice Wilson. Though this decision was overturned following the eleventh amendment, it highlighted pioneer application of natural laws which are not covered within the United States constitution (Linton, 2012). After the end of the civil war, the application of the natural law in court proceedings gained prominence and this has provided current judicial officers a chance to apply the same in current cases. This has been attributed to the excesses that the legislature adopted in laws that were viewed to violate the rights of the citizens. The judicial activism and the division that existed between the Supreme Court and the congress during the mid-50s contributed to the adoption of unwritten natural laws in the country’s judicial processes. For example, the adoption of the fourteenth amendment provided basis for natural law jurisprudence due to the liberty and protection for property that was provided by the laws (Re, 2014). According to the well-established constitutional rights, the government of the United States has no basis to interfere with the basic and personal decision of its citizens. These decisions include but not limited to personal decisions involving parentage, number of children, choice of spouse among other private choices and decisions. One of the rights of the people which has continuously been threatened by both government and lobby groups yet it was reaffirmed by the united states Supreme Court is the right to abortion. This formed the basis of the popular Roe v Wade case that illustrated the unwritten laws in the rights of privacy in the country. According to a Supreme Court judgment that was made in 1891, the rights of privacy were extended to various other areas including the activities of relationship, procreation, child bearing and education. This was not covered under the constitution yet it was set as a precedent through this landmark ruling by the Supreme Court (Linton, 2012). Conclusion The use of unwritten laws in the United States has existed for over a long time and has been used in the determination of a number of cases. In most cases, the judges apply previous rulings which were not based on the constitutional provisions to determine a case beyond the contexts of the court. Within government, legislature and judicial structures, organs exists which are not covered within the country’s constitution though considered legal. All these have been covered in this paper as part of the precedent of the unwritten constitution in the United States. References Amar, A. (2011). Americas Lived Constitution. Yale Law Journal, 120(7), 1734-1783. Baker, T. J., & Hedge, D. M. (2013). Term Limits and Legislative-Executive Conflict in the American States. Legislative Studies Quarterly, 38(2), 237-258. doi:10.1111/lsq.12012. Caress, S., & Kunioka, T. (2012). Term Limits and Their Consequences: The Aftermath of Legislative Reform. Albany: State University of New York Press. Kozel, R. J. (2013). Settled Versus Right: Constitutional Method and the Path of Precedent. Texas Law Review, 91(7), 1843-1896. Linton, P. (2012). The Legal Status of Abortion in the States if Roe v. Wade is overruled. Issues in Law & Medicine, 27(3), 181-228. McCutcheon, S. T. (2013). Is the Federal Limit on Total Contributions to Political Candidates and Committees Unconstitutional? Supreme Court Debates, 16(8), 12. Pryor, J. (2007). Unwritten constitutions? European Journal of English Studies, 11(1), 79-92. Doi: 10.1080/13825570601183401. Re, R. M. (2014). The due process exclusionary rule. Harvard Law Review, 127(7), 1887-1966. Reichard, D. A. (2013). Americas Unwritten Constitution: The Precedents and Principles We Live By. History Teacher, 47(1), 132-133. Root, D. (2013). Beyond the Limits of the Constitution. Reason, 44(10), 56. Sharma, H., & Glennon, C. (2013). A Case for Supreme Court Term Limits? The Changing Ideological Relationship between Appointing Presidents and Supreme Court Justices. Politics & Policy, 41(2), 267-297. doi:10.1111/polp.12008/ Williams, R. C. (2010). The One and Only Substantive Due Process Clause. Yale Law Journal, 120(3), 408-512. Read More