December 6, 2023

Our unwitting Constitutions, written and unwritten




Today’s Events in Historical Perspective

America’s Longest-Running Column, Founded 1932

Our unwitting Constitutions, written and unwritten

By Douglas Cohn and Eleanor Clift

WASHINGTON – One by one the flames are jumping the firewalls of our written and unwritten Constitutions. The written version was never intended to carry on so long with so few alterations (amendments), but it has. It was never intended to impede political progress with antiquated strictures nor conversely be so vague as to encourage anarchical disarray, but it has.

Only 10 amendments have been ratified in the last 146 years (not including the 18th and 21st creating and abolishing Prohibition):

16th – Income Tax

17th – Popular Election of Senators

19th – Women’s Suffrage Rights

20th – Terms of President, Vice President, Members of Congress: Presidential Vacancy

22nd – Presidential Tenure

23rd – Presidential Electors for the District of Columbia

24th – Abolition of the Poll Tax Qualification in Federal Elections

25th – Presidential Vacancy, Disability, and Inability

26th – Reduction of Voting Age Qualification

27th – Congressional Pay Limitation proposed in 1789, ratified in 1992

Of these, only the 19th, 24th, and 26th have had widespread positive significance, while, arguably, the 16th has had a different kind of significance.

Enter the unwritten Constitution, a development spawned by the near-impossibility of convincing the required 75 percent of the nation’s states to ratify correcting amendments. But unlike Great Britain’s unwritten Constitution, the U.S. version lacks the weight of law, which is why it is failing.

The way we elect (or select) presidents is especially revealing, because, except for the Electoral College, the written Constitution is silent on the matter. As Alexander Hamilton explained in Federalist Paper 68, the Founding Fathers expected the states to select presidential electors who would then exercise their collective judgment to ensure “that the office of president will never fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications.” It has not worked out that way. A provision for nominations is missing.

Presidential candidates have been nominated by small cliques, variously-populated political conventions, smoke-filled back rooms, primaries, and caucuses. Each of these firewalls failed primarily because the Founders failed to anticipate the rise of political parties, and electoral anarchy has been the result. Political parties, not federal or state governments, have been the nominating deciders, yet they are not governed by law. They can hold caucuses, open primaries, or closed primaries (limited to party members) as they choose. In 2016, this led to the nomination of the two most unpopular candidates since 1860 (and that election led to civil war).

In 2016, Republicans made up 27 percent of the electorate. Fewer than half of them voted in primaries and caucuses, and fewer than 40 percent of those voters selected their presidential nominee through party-enforced plurality rules, which means that approximately five percent of the national electorate nominated one of the two main parties’ candidates. The Democrats fared little better. The nominating firewall was breached.

On to the general election. There are no federal elections, only state elections, and the people (or legislature, if they choose) of each state votes, not for a president, but for electors. These state electors then cast votes for the president and vice president, and 29 states and the District of Columbia have passed unconstitutional laws requiring their electors to vote as a plurality of their states’ voters voted. In any event, the unwritten Constitution dictates this, and it has generally been obeyed. However, reinforcing the words of Hamilton, the insightful musical, “1776”, has Dr. Lyman Hall, delegate to the Continental Congress from Georgia, announcing: “In trying to resolve my dilemma [regarding independence] I remembered something I’d once read, ‘that a representative owes the People not only his industry, but his judgment, and he betrays them if he sacrifices it to their opinion.’ It was written by Edmund Burke, a member of the British Parliament.”

In this instance, the constitutional firewall protecting us from a president lacking the “requisite qualifications,” has been usurped by the unwritten Constitution.

This Constitution-unwritten Constitution dilemma is also apparent in the ways states conduct elections (types of ballots, machines, counting, etc.). Recounts, judicial proceedings, or even criminal indictments provide ever-weaker firewalls. And, of course, there is the final means: impeachment.

In the end, the Constitution’s silence and the unwritten Constitution’s unenforceability along with its undemocratic irrationality have created political chaos.


          A discussion of Douglas Cohn’s new books, “World War 4,” endorsed by seven flag officers, and “The President’s First Year: The Only School for Presidents Is the Presidency”, may be found at: or by typing “C-SPAN” and “Cohn”

Twitter @WMerryGoRound

© 2016 U.S. News Syndicate, Inc.

Distributed by U.S. News Syndicate, Inc.


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