The Unofficial Constitution

• In Event: Constitution Making and Constitutional Courts

Abstract

For a number of years, I have been doing original research developing the concept of the “Unofficial Constitution” (and “unofficial constitutionalism” more generally) to account for historical and contemporary dimensions of law and politics involving the U.S. Constitution that have been overlooked or downplayed by more typical (and more familiar) emphases on the “Official Constitution.” The Official Constitution is the Constitution as enacted, interpreted, and enforced by public officials (e.g., founders, legislators, judges). The concept of the Unofficial Constitution, by comparison, focuses instead on roles that the people at large (e.g., ordinary citizens) have played within the constitutional system. That includes voting, expressing views on the Constitution by exercising rights of speech, and trying to influence public officials to enforce or alter constitutional norms or practices. The Unofficial Constitution is an analytic concept to describe the relevance of the actions and commitments of ordinary people involving the entire U.S. Constitution – including the text itself and interpretations of it by government officials and others.

I have previously drawn on the example of Frederick Douglass as an exemplary unofficial constitutional actor and explored the significance of his anti-slavery activities and commitments prior to the American Civil War (Moore 1996). Elizabeth Beaumont (2015) has traced ways that popular movements committed to “civic ideals” have made the U.S. Constitution more “civic.” John Finn (2015) has explored ways that citizens have shaped and reshaped their constitutional identities in relation to the Constitution’s “civic” commitments. Larry Kramer (2004) has emphasized the importance of constitutional interpretation by “the people themselves” to counter claims of judicial interpretive supremacy. Thus Beaumont, Finn, Kramer, and I have each treated unofficial actions by the ordinary people as constitutionally significant.

The concept of the Unofficial Constitution embraces the central contributions of each of these works but goes farther. Not all unofficial actors have been parts of “popular” movements or been committed to “civic” ideals. Unofficial actors, acting separately and collectively, have influenced more than the U.S. Constitution’s formal amending. The people’s constitutional identities have not always been aligned to the Constitution’s civic ideals. Unofficial actors have weakened, not only reinforced, the Constitution’s authority. And constitutional interpretation by the people at large has had more profound effects on the constitutional order than Kramer has acknowledged. Accordingly, the concept of the Unofficial Constitution embraces a wider range of constitutionally significant unofficial actions and commitments, beyond those that fit within the Civic or Popular Constitution.

An important early source of the Unofficial Constitution was the unofficial debates between Federalists and Anti-Federalists. Those debates provided the U.S. Constitution with its initial unofficial authority and meaning. They also influenced the course of the Constitution’s official ratification. Since the founding period, unofficial actors have continued to provide the U.S. Constitution with unofficial authority and meaning. Unofficial actors have also continued to influence representative actions that have shaped and reshaped the Official Constitution.

In recognition of the potential vastness of the concept of the Unofficial Constitution, I seek to identify criteria for studying it coherently and systematically. Among other things, I explain how principles of popular sovereignty support a position that voting, political expression, and constituent actions have been constitutionally authoritative means of unofficial action by the people at large. In addition, I distinguish the inherent normative significance of unofficial commitments and actions from their effects on official actions.

The bottom line is that the concept of the Unofficial Constitution provides a valuable analytic tool with which to examine the direct and indirect constitutional significance of ordinary people’s unofficial commitments and actions. This concept enables a more comprehensive portrait of the Constitution’s legal, extra-legal, and non-legal authority and meaning than is possible through a study of the Official Constitution alone. It supports analysis of ways that constitutional authority in the United States has been partial rather than complete, and constitutional meaning has been deeply pluralistic and contested rather than unitary and settled.

Author

• Wayne D. Moore, Virginia Tech