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The Small-c constitution, Circa 1925
Herbert W. Horwill, T he Usages of the American Constitution (1925). Adrian Vermeule A great deal of recent work distinguishes the small-c constitution f rom the Constitution. T he latter is the written document, whereas the f ormer is an amorphous and ever-changing body of constitutional norms, customs, and traditions – “constitutional conventions,” to use the umbrella term that Commonwealth lawyers have developed to talk about unwritten constitutions. T he recent work on small-c constitutionalism, however, has almost invariably neglected a classic and illuminating book on constitutional conventions in the United States: Horwill’s Usages of the American Constitution. A “neglected classic” sounds like an oxymoron, but Horwill’s book is proof that such a thing can exist. Horwill was an English writer who lived and traveled in America and reported upon its natives and their curious customs f or an audience in the Old World; his book thus f alls into a genre def ined by Tocqueville and Bryce. Because the past is another country, many of the constitutional usages that Horwill discussed in 1925 seem exotic today. In the 19th century, there was apparently a constitutional convention that the President should not travel outside the territory of the United States during his term of of f ice. T he convention was suf f iciently powerf ul, Horwill relates, that presidents would meet their Mexican counterparts half -way across a bridge over the Rio Grande. Woodrow Wilson shattered the convention with his extended stay in Paris af ter the First World War, and it has now vanished f rom view altogether. Wilson also shattered another convention, which held that the President should deliver messages to Congress in writing, never orally and in person. T he Constitution’s text requires a State of the Union message, but does not specif y the f orm it should take. Washington and Adams delivered speeches in person, but Jef f erson switched to written messages – according to Bryce and Horwill, either f rom the high republican principle that the president should not overawe Congress with his quasi-monarchical presence, or because Jef f erson disliked public speeches. Jef f erson’s practice became encrusted with a constitutional aura and lasted f or over a century. In these examples and more generally, the central theoretical question is how constitutional usages arise and then persist, change or disappear over time. Horwill explicitly def ines “usages” to ref er to conventions in the Commonwealth lawyers’ sense – not mere behavioral regularities, but behavioral regularities resting on a “general agreement” that the behavior is “the proper thing to do.” (P. 22.) But how do such general agreements with normative f orce develop and change? Much of the literature on small-c constitutionalism skates over these questions, and thus works with ill-specif ied concepts or posits conventions and norms without specif ying any underlying causal mechanisms. T he puzzles are numerous and daunting. If the conventions against presidential travel abroad and against oral delivery of messages to Congress existed, how could Wilson violate both of them without serious political repercussions? Perhaps the near-costless violation of a purported convention shows that it never existed at all, as Jon Elster suggests in a recent paper on unwritten constitutional norms. Conversely, however, some conventions seem to come into existence only when and because they are violated. Af ter President Obama chastised the justices of the Supreme Court, sitting at his f eet during a State of the Union Address, some claimed that Obama had violated a constitutional norm protecting the justices’ independence. Bef ore Obama acted, however, no one claimed that such a norm existed because presidents never publicly conf ronted the justices in person, f ace-to-f ace, and so no one thought about the issue. T he norm crystallized only af ter and

because it was shattered. Horwill devotes a chapter to how and why constitutional usages change, and of f ers some acute observations. His main theory is straightf orward: constitutional usages are shaped by the anticipation of sanctions f rom public opinion, which constrains of f icials and politicians through f ear of public shaming or loss of an election or a job. Every f our years, presidential electors, who the f ramers thought would exercise independent judgment, instead vote slavishly along party lines and thus, as a group, vote f or the candidate of whichever party prevailed at the polls. T hey do so in part because other electors have done so in the past, but mainly because the parties and indeed the general public would be outraged if they did otherwise. Furthermore, political actors under the shadow of public opinion will make “mutual concessions f or the avoidance of a deadlock in the government,” (P. 209), presumably because constitutional showdowns are a risky game in which either side may come out worse – as the Republican congressional majority discovered when it f orced a government shutdown in 1995, and suf f ered f or it politically. T he concessions needed to avoid such a f ate establish new usages, which in turn become f ocal points that shape f uture behavior. Yet Horwill also explores complications. Public opinion is of ten inert or nonexistent on a given issue. “If the questions involved do not arouse general interest, a new usage may easily be established or an old one easily abrogated.” (P. 207.) Moreover, public opinion is partially endogenous and can be molded by political actors to some degree. Wilson was able to shatter the convention against oral addresses to Congress because he was reverting to the earlier convention of oral address established by Washington, and then changed in turn by Jef f erson. In ef f ect, Wilson appealed f rom traditional norms to the higher authority of the even more remote past. Finally, and most importantly, Horwill suggests that usages can prove sticky over time just because they shape the perceived boundaries of political possibility. What propped up the post-Jef f erson convention against oral addresses to Congress was not f ear of public opinion, but lack of imagination: “[A]lthough the [Jef f ersonian] tradition had come to be generally recognized as an unf ortunate one, it did not occur to any President, until Mr. Wilson took of f ice, that he had the power to break away f rom it.” (P. 199.) T he cognitive hegemony of convention persists until some extraordinary actor sees that there is an unexploited opportunity to turn the unimaginable into f act. Here and throughout, Horwill’s book is humbling. At any given time the set of unwritten conventions seems f ixed, yet f rom the standpoint of history they have a short half -lif e, and many of today’s conventions will be gone a century hence. Indeed, conventions are f ragile and might pop like a soap bubble instead of decaying gradually. Who knows what central unwritten usages of our constitutional order, seemingly unassailable today, might “disappear[] suddenly, almost at a touch”? (P. 207.)