Every country has a constitution. Some have a written constitution, while the others have an unwritten one. An unwritten constitution means that the country follows customs that have some legal sanction. This unwritten constitution can be changed if the governing body passes an act or through the development of new customs.

The U.S.A. has both a written and an unwritten constitution. The written constitution is the document that was adopted at the Philadelphia convention of 1787, along with the amendments added to it. And the unwritten constitution is that which has evolved by custom and practice over the years. For instance, the written constitution does not make any references to political parties, lobbying, the committee system of handling bills, or the power of the Supreme Court to declare the laws of the Congress null and void. But these practices exist and form an integral part of the American political system.

Exhibit 4.1

The two houses of Congress assemble in the House of Representatives for a joint session.

The U.S. adopted a federal system of government due to certain practical needs (elucidated elsewhere in the chapter) that arose in 1787. One of the main reasons was that several states had decided to come together for common purposes, but wished to retain their separate identities and power.

The 13 states that became a part of the Union were not willing to delegate all the powers to the center. They wished to entrust the central government only certain powers. The rest they retained. The center or the federal government was given limited powers. These limited powers are also called ’enumerated’ powers since they have been elucidated in the constitution in great detail.

Section 8 of Article I in the constitution elaborates on the powers of the federal government. It states: "The Congress shall have powers to lay and collect taxes..." This is followed by 17 clauses such as: "to borrow money...to coin money...to declare war..." All these clauses form a part of the main clause which says: "Congress shall have power ..." In other words, the center has power over matters that are of national importance like defense, currency etc. (See section 8 of articles IV and I. These give details about certain additional powers granted to the center).

While the identity and rights of the states are recognized by the center, there are certain powers that are denied to the state. These "dont’s" are clearly stated in section 10 of article I in the constitution. For instance, the states cannot sign treaties, mint coins, declare war, levy duties on imports, exports or raise an army without the permission of the Congress.

At the time, the constitution was being prepared, the states feared that the Congress might favor one state at the expense of the others. To check this, section 9 of article I states that the center cannot levy export taxes, take money from the treasury without a legal sanction or ratification from the Congress or give preference to the trade of one state over another. Further, there were other limits placed on the center as explained in article I, section 9 and the first nine amendments to the constitution - are all laid down to protect the natural rights of all citizens (Ref. Appendix). As far as the relation of the center to the states is concerned, it is stated in the tenth amendment that: Those powers not delegated or given to the federal government of the U.S., but not denied to the states are ‘reserved’ to the states or the people. These are what are known as ’reserved’ or ’residual’ powers of the states.

In section 8 of article I, there is a clause which grants broad powers to the federal government. It declares that the Congress has the power "to make all laws which shall be necessary and proper for carrying into execution the foregoing powers and all others powers vested by this constitution in the government of the United States..." The clause is also known as the ’elastic clause’ or ’necessary or proper’ clause. By this clause, the center can broaden its purview to pass laws that are acquired or derived from the granting of specific powers. But this is just one interpretation of the clause. The other interpretation could be that the functions of the federal government should be limited to passing laws that are related to the ’enumerated’ power (See Appendix: last clause in sections of Article I. Also see the paragraph on Limited Federal Government to understand ’enumerated’ powers.)

The ’elastic’ clause has always been given the former interpretation by the Supreme Court. The interpretation that has developed over the years through practice can be considered as part of the unwritten constitution. While the Congress has the power (’enumerated’) to tax and borrow money, it has also set up a national banking system and encouraged industry through tariffs. Similarly, under the power to set up post offices and roads, the Congress also takes on the responsibility of subsidizing railroads, airways etc.

Meanwhile, the people who follow the second interpretation of this ’elastic clause’ are usually the strongest defenders of the States Rights. Those who follow the first interpretation are the advocates of a strong center. The conflicts that arise between the advocates of States Rights and of a strong center are usually solved by the rulings of the Supreme Court. With rapid changes in the economy today, many political scientists argue that the powers of the federal government should be extended to include issues of health, social security, industry and labor. For they believe that these complex issues cannot be handled by the states independently. And that the center should formulate a common program for matters as vast and complex as the ones mentioned earlier.

One of the significant features of the Constitution is that there is a three-fold separation of powers: the executive, the legislature and the judiciary. All these three bodies of the government serve as ’check and balances’ on each other. These three branches of the government dependent on each other. At the same time, they are also independent parts of the government.

The aim of the provision of checks and balances is to prevent any one branch of the government from becoming extremely powerful. It also serves to keep any one department of the government from unnecessarily interfering with the basic rights of individuals - such as the right to property and the right to the pursuit of happiness.

The duties assigned to a President are to implement the laws adopted by the Congress and to manage foreign affairs. Due to these duties, the President is in a way, independent of the legislative and judicial branches of the government. But at the same time, all foreign treaties negotiated by the President must be ratified by a two-thirds vote of the Senate; all Presidential appointments must get prior confirmation from the Senate; and the President’s actions can be reviewed by the judiciary.

The legislature can overcome the President’s veto powers by a vote of two-thirds majority. It can also overcome the veto of the judiciary by means of an amendment to the constitution. This amendment has to be ratified by the legislatures of the states through a three-fourth vote.

Under this, the President has the power to forgive/pardon those who have been sentenced to death by the court. Further, the President alone can appoint judges with the Senate’s approval; and he can or has the right to ignore the court’s rulings.

The judiciary comprising the Supreme Court and other special courts that the Congress often creates, holds trials and passes orders and sentences on the guilty. The President, with the Senate’s approval appoints the judges. While, on the one hand, the judiciary is controlled by the executive, on the other, it is controlled by the legislature, as the legislative branch can impeach judges. At the same time the judiciary can be independent, as it can review the decisions of the executive. So much so that through a varied interpretation of the law, it can declare the laws of the Congress or the states as unconstitutional. And this power of the judiciary can be checked only by an amendment to the constitution.

While the Senate constantly checks the President’s powers, the President also can check the legislature. The President has the power to make recommendations to the Congress and to pass laws. He can veto bills passed by the Congress and also call the Congress to a special session. Moreover, the President has the power as well as the opportunity to create a public opinion favorable to his policies. Secondly, if he is able to get a good support from his party, he can get his policies passed. Finally by the distribution of executive favors and patronage, he can very often persuade the actions, he wants or prefers, over any matter.

The Bill of Rights was prepared on the basis of Ten amendments made to the constitution (1791). The first eight of these amendments served as a check on the federal government’s powers over individual citizens. According to this: the Congress could not limit free speech, or deny the people the right to carry arms for military service. It could not interfere in the religious affairs of the people; or allow homes to be searched by the police without warrants. Moreover, suspects could not be forced to give testimony against themselves. Also the government could not deprive the citizens of trial by jury or encroach on their basic rights i.e. the right to life, liberty and property, "without the due process of law." Lastly, the center could not charge heavy bail amounts or give cruel and unusual punishments to anyone.

The Ninth Amendment states that the rights included in the earlier list did not exclude others. And the Tenth amendment proclaims that the powers not delegated to the center or not given to the states belong to the states and individuals respectively. The Bill of Rights was a historic document. For this was the first time that a document stating clearly and firmly the rights or guarantees to private citizens had been brought out. In that sense, the Bill of Rights was a landmark in the history of human independence. In 1791, this Bill limited the powers of the center and not of the states. It was only after the Civil War, that the power of the states over common people was restrained by the fourteenth amendment to the constitution.

Article V in the constitution clearly gives the details about how it can be amended. There are two requirements for amendments. One is the proposal and the second is the ratification. A proposal for amendment can be made by a two-thirds vote from both houses of the Congress or by a convention summoned by the Congress after three-fourth of the states’ legislatures apply for the amendment. The earliest amendments made to the constitution have been the 10 amendments called the Bill of Rights. Then the Civil War amendments, i.e. the thirteenth, fourteenth and the fifteenth amendments were made to resolve the conflicts that arose during that period of struggle. In the twentieth century, the most notable or significant amendments are the Twenty first and the Twenty second Amendment. The Twenty first amendment repealed (canceled) a previous amendment - the Eighteenth Amendment which had established prohibition in the U.S. This is the only amendment in American constitutional history, which was ratified by specially selected conventions in every state. The Twenty first Amendment passed in 1951 limited the election of the President to 2 terms.

The various usage and practices that have evolved over the years with certain legal sanctions - form the Unwritten Constitution. The main features of this Unwritten Constitution are:

The Party system, though not mentioned in the constitution, yet exists as an integral part of the political scenario in America. It is what constitutes the unwritten law.

The Cabinet System in the U.S is also a result of the custom and laws later passed by the Congress.

The method of forming committees to formulate and consider laws is also a result of practice. The Senate and the House of Representatives vote on the laws, suggested by various committees appointed by the Congress.

When the President makes appointments to various posts, he is influenced by the Senator of the state to be directly affected by the state. Similarly, while ratifying these appointments, the Senators are advised by the states that would be affected by the particular Senator appointed. This too is a common practice that forms a part of the Unwritten law.

President Franklin D. Roosevelt broke the custom of two-terms for the President, when he stood for elections a third time. This custom of 2 terms for the President became law in 1951, with the Twenty first amendment to the constitution.