American constitutionalism is famously about written rules. Our constitutions are filled with “thou shalt nots.” So much so that many unfortunately jump to the conclusion that the entire point of a constitution is to impose limiting rules. And certainly for several decades, the American experiment with written constitutions stood out for the ways in which it bound government officials with legally enforceable rules. (That experiment is less uniquely American now.) As Justice William Paterson observed shortly after the Founding, the constitution of England “lies entirely at the mercy of parliament: it bends to every governmental exigency; it varies and is blown about by every breeze of legislative humour or political caprice.” It was to avoid such problems that in America the constitution was “reduced to written exactitude and precision.”
While constitutional rules, and their interpretation and enforcement, are of course important, they do not exhaust our constitutional practice. Perhaps as important as written constitutional rules to the maintenance of a free republic are the unwritten constitutional norms, practices, and conventions that guide and constrain political behavior. Those unwritten constitutional norms are less transparent than the explicit words of the written constitutional text, and are less likely to feature in judicial opinions, but they are fundamental elements of our historical constitutional practice.
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