In view of the latest indictment I dusted off this old column:
The Unwritten Constitution
By Steve Browne
Not long ago I stumbled across an interesting factoid about constitutions. Of all sovereign states with constitutions around the world, only half have been functioning for more than 19 years.
The Constitution of the United States was ratified in 1788, making it the oldest codified constitution in the world.
The Republic of San Marino has a written constitution dating back to 1600, but experts in such matters have defined a difference between “written” and “codified” constitutions.
Codified constitutions tend to occur as a result of the founding of a new kind of government or a new nation.
A couple of perfectly nice countries, the UK and New Zealand, have no written constitutions.
A constitution is the basic and highest law of the land, which all other laws are measured against. If found to be in contradiction to the constitution, a law must be discarded as ‘unconstitutional.’
The constitution itself cannot be changed “by ordinary processes of legislation” in Thomas Jefferson’s words.
It is of course possible, even common, for governments to violate their own constitutions without going through the formal processes of amendment. Strict constructionists will point out the U.S. government does all kinds of things not specifically authorized by the Constitution, which would seem to be in violation of the Tenth Amendment, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”
And I’ve never understood how a draft could be constitutional under the 13th Amendment, “Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction,” but the Supreme Court does not agree.
But the nice thing about a written constitution is that no matter how disregarded it may be, it’s still down in black and white for a later generation to rediscover.
But what concerns me is the violation of certain unwritten customs that aren’t formally parts of the Constitution.
The first example that comes to mind was Franklin Roosevelt running for unprecedented third and fourth terms.
Two terms was a precedent established by George Washington when he could easily have had as many as he liked. It was customary until FDR, and made law only with the passage of the 22nd Amendment.
But lately there has been more disregard of tacitly understood customs around our Constitution.
Obama disregarded presidential protocol during his term by blaming his predecessor for “the mess I inherited,” and after his term by staying in Washington and setting up what amounts to a shadow government – which is a perfectly normal practice of parliamentary systems but until now not done in America.
Another unwritten custom has been, an incoming administration does not prosecute the loser of the election or the previous administration.
Though it might seem justice demands it there are just too many ways that can go south.
During his first campaign Trump alluded to Hillary going to jail, but did not follow through.
And now after challenging the validity of election results, something even Nixon didn’t do after dodgy election results, there is much talk of prosecuting Trump.
It doesn’t matter what you think of Trump or his attempt to challenge the election, that’s a dangerous road to go down.
