While at a friend’s house recently I overheard one of his children say to a playmate “that’s unconstitutional”.
Personally, I love this phrase. Nothing better demonstrates that our sense of fairness and human rights are embedded directly in the foundational document of our country and that everyone, from Supreme Court justices to children on playgrounds can appeal to that fairness and those rights.
However, when actually reading the Constitution, it’s shocking just how many things we might expect to be are not explicitly mentioned anywhere in the document.
Below is list of 10 such things.
Note: many of these items are now firmly established through precedent as part of the Constitution. My point here is not to pass judgement on the wisdom of those precedents but simply to point out just how much of our sense of the Constitution relies on precedent and interpretation and not on an explicit statement in document.
1. Judicial review
Judicial review is the concept that the Supreme Court can overturn a federal or state law that it determines violates the Constitution. Almost all of the major Supreme Court decisions rest on the concept of Judicial review - from Brown v. Board of Education, to Roe v. Wade, to Obergefell v. Hodges.
However, nowhere does the Constitution say that the Supreme Court has the final right to interpret the Constitution in this way. Like many of the items in this list, it comes from precedent, starting with the decision in Marbury v. Madison in 1803 where John Marshal outlined the logic for judicial review:
- The Constitucion is the supreme law of the United States, ie no state or federal law can violate the Constitution. “the constitution is superior to any ordinary act of the legislature”.
- The Supreme Court has the final say on interpreting all law. “It is emphatically the province and duty of the Judicial Department to say what the law is.”
- Since the Constitution is the supreme law and the Supreme Court has the final right to interpret the law, the Supreme Court has the final right to determine what is and is not constitutional.
While Marbury v. Madison first set the precedent of judicial review it was not firmly established as what we know today until much later.
Abraham Lincoln famously ignored the Supreme Court’s decision in the Dred Scott case, holding that all branches of government (including the executive branch) had the right to interpret the constitution.
Not until Youngstown Sheet & Tube Co. v. Sawyer, when President Harry S Truman complied with the Court’s order, did judicial review gain the status we grant it today.
2. Number of supreme court justices
Given how powerful judicial review has become, you might think that the number of Supreme Court justices would be written into the Constitution, but not so. It is determined by Congress.
In fact, the number of justices has changed throughout time, the last time being in 1869.
The last attempt to change the number of justices occured in 1937 with FDR’s so called “court packing plan”.
3. Apportionment of representatives
Believe it or not, the Constitution lays out no specific formula for determining the number of Congressional representatives that each state gets.
The only thing the Constitution says is that they must be apportioned among the states “according to their number”, ie population (which, at the time, counted Black people as 3/5th of a person).
What’s even more insane? It is mathematically impossible to do what the Constitution says and apportion representatives proportional to population.
4. Dates of elections
The dates of elections are not set by the Constitution. They are, in fact, determined by states. Although “Congress may at any time by Law make or alter such Regulations”.
5. Popular votes for the Electoral College
Today, all states select the members of the Electoral College based on the popular vote (sometimes by congressional district). However, that is not required by the Constitution.
Every state determines how to select their Electoral College members themselves. So, for instance, your state government could determine that it will select its Electoral College members itself, without even holding a popular vote for President.
Or states can determine that all of the electors from the state will go to the winner of the national Presidential popular vote.
The filibuster, where the any US Senator (or group of Senators) can block a vote on a bill by extending debate on the issue until the session is over, comes from the Senate’s own internal rules, not from the Constitution.
All the Constitution says is that “Each House may determine the Rules of its Proceedings”
7. Bill of rights applied to states
While, it’s now firmly established in precedent, with the help of the 14th Amendment, that the Bill of Rights applies to state as well as federal law, it’s not explicitly part of the language of the Bill of Rights.
For instance, the First Amendment says “Congress”, by which they mean the federal Congress, “shall make no law respecting an establishment of religion…”.
At the time that the Bill of Rights was passed, it was possible that a state could establish a state religion, or do any number of other things that would violate the Bill of Rights.
8. Separation of church and state
While, the First Amendment strongly implies a separation of church and state, the phrase is nowhere to be found in the Constitution.
9. Freedom of contract
The right of two individuals to enter into any contract isn’t listed anywhere in the Constitution.
Although the court has used substantive due process to establish this before (in the case of Lochner v. New York it ruled that a New York law limiting the number of working hours was unconstitutional), it has been inconsistent.
10. Right to privacy
Like freedom of contract, parts of the Constitution (especially substantive due process) imply a right to privacy, but unlike freedom of speech, it’s not explicitly stated.