The Conventions of the United States Constitution
Chapter Twenty-Two
Syllabus topic 2, "Conventions in Constitutional Law."
Pages 98 to 101 of 676
In one line
The shortest constitution on this syllabus has the largest number of gaps, and practice has filled them with conventions, one of which became the Twenty Second Amendment.
In the wording a student can write in an exam: the conventions in the United States fill the silences of the text, which says nothing about political parties, the cabinet, presidential tenure beyond a term, the conduct of electors, or the internal procedures of Congress, and each of these has been governed by convention, some of which have since been enacted.
What the text does not say
Nothing about political parties. They appear nowhere in the document and organise the entire system.
Nothing about a cabinet. Article II section 2 refers to the opinion in writing of the principal officer in each of the executive departments, and that is all. The cabinet as a body is convention.
Nothing about how presidential electors vote. Article II section 1 and the Twelfth Amendment provide for electors who meet and vote. The convention is that they vote for the candidate to whom they are pledged.
Nothing about presidential tenure beyond four years. Until 1951.
The two-term convention, and its enactment
George Washington declined a third term in 1796. Every President followed for a hundred and forty four years, including Ulysses Grant and Theodore Roosevelt, both of whom wanted a third term and were refused by their parties on the ground of the convention.
Franklin Roosevelt broke it in 1940 and again in 1944.
The Twenty Second Amendment, ratified in 1951, provides that no person shall be elected to the office of the President more than twice, and that no person who has held the office, or acted as President, for more than two years of a term to which some other person was elected shall be elected more than once.
That is the whole life cycle of a convention in one example: precedent, obligation, reason, breach, and enactment. It is the example to give when asked whether conventions matter in a written constitution.
Other American conventions
Senatorial courtesy. The Senate will not confirm a nomination to an office within a State if the senators of that State from the President's party object. It has no textual basis and constrains the appointment power in Article II section 2.
The filibuster. Extended debate in the Senate, ended only by cloture. It rests on the Senate's power under Article I section 5 to determine the rules of its proceedings, and its content has changed repeatedly, most notably by the abolition of the filibuster for judicial nominations in 2013 and for Supreme Court nominations in 2017.
Judicial nomination hearings. The Senate's public interrogation of a nominee is entirely conventional. It dates from 1925 in its modern form.
The Conventions of the United States Constitution
Presidential disability. Before the Twenty Fifth Amendment of 1967, what happened when a President was incapacitated was a matter of practice. The amendment now provides for the Vice President to act, and for the mechanism by which the President resumes.
Concession and transfer of power. That a defeated candidate concedes and that power is transferred peaceably is a convention, and it is the one whose fragility has been most discussed since 2020.
A worked example
A President is elected and immediately announces that the cabinet will be abolished and that he will govern through personal advisers who are not confirmed by the Senate.
The text. Article II section 2 requires the advice and consent of the Senate for ambassadors, judges and all other officers of the United States whose appointments are not otherwise provided for, and permits Congress to vest the appointment of inferior officers in the President alone, the courts, or heads of departments. It does not require a cabinet.
The convention. The heads of the executive departments meet as a cabinet.
What follows. Nothing legal, if the statutory departments continue to exist with confirmed heads. What follows is political: the Senate's leverage over appointments, congressional oversight, and the appropriations power.
That is the American pattern. The conventions are not enforced, and Congress's legal powers over money, appointment and investigation supply the pressure.
The cases
Facts. Immigration and Naturalization Service v. Chadha, 462 U.S. 919 (1983), concerned a statutory device by which one House of Congress could veto an executive decision, a practice that had grown up over fifty years and appeared in some two hundred statutes.
Held, by Burger CJ for the Court. The one-House veto was unconstitutional. The purposes underlying the Presentment Clauses of Article I section 7 and the bicameral requirement of Article I sections 1 and 7 governed: legislative action must pass both Houses and be presented to the President.
Why it matters here. It shows the American approach to entrenched practice: where the practice conflicts with the text, the text wins, however long the practice has run. That is the opposite of the British instinct, and it is the reason American conventions occupy only the space the text leaves empty.
Facts. United States v. Nixon, 418 U.S. 683 (1974), arose when a special prosecutor subpoenaed tape recordings of Presidential conversations. The President resisted on the ground of an absolute executive privilege, a claim resting largely on practice.
Held, by a unanimous Court. Neither the doctrine of separation of powers nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances. A qualified privilege exists, and it yielded to the demonstrated need for evidence in a criminal trial.
The Conventions of the United States Constitution
Why it matters here. A long-standing executive practice was tested against the constitutional structure and cut down, again showing the text prevailing over practice.
Distinctions
| United Kingdom | United States | |
|---|---|---|
| Extent of conventions | The working constitution is largely conventional | Conventions fill gaps in a short text |
| Conflict with the text | Rare, because the text is thin | The text prevails: Chadha |
| Conversion into law | Occasional: Parliament Acts | Occasional: Twenty Second and Twenty Fifth Amendments |
| Who enforces | Politics | Politics, but the courts police the text strictly |
What beginners get wrong
"The American constitution has no conventions because it is written." It has many, and the two-term convention governed the Presidency for longer than the Twenty Second Amendment has.
"The Electoral College is a convention." It is in Article II section 1 and the Twelfth Amendment. What is conventional is that electors vote as pledged.
"The filibuster is constitutional law." It is a Senate rule under Article I section 5 and has been changed by simple majority twice in the last fifteen years.
Limits and criticism
American conventions are weaker than British ones, because the political system is not organised around a single point of accountability. A President who breaks one is answerable to Congress, and Congress may be of his own party.
Codification has been partial and reactive. The Twenty Second and Twenty Fifth Amendments each followed a crisis rather than anticipating one.
Judicial hostility to practice cuts both ways. Chadha struck down a device that made the executive more accountable, and Trump v. United States, 603 U.S. 593 (2024), read immunity into a text that mentions none.
Quick revision
- The text is silent about parties, the cabinet, elector conduct, and, until 1951, presidential tenure.
- Two-term convention: Washington 1796, broken by Roosevelt 1940 and 1944, enacted as the Twenty Second Amendment in 1951.
- Senatorial courtesy, the filibuster, nomination hearings, and concession are conventions.
- Presidential disability was conventional until the Twenty Fifth Amendment of 1967.
- INS v. Chadha, 462 U.S. 919 (1983): fifty years of practice yielded to bicameralism and presentment.
- United States v. Nixon, 418 U.S. 683 (1974): no absolute privilege of immunity from judicial process.
- The American pattern: conventions fill gaps and lose to the text where they conflict with it.
Test yourself
1. Give the best American example of a convention and trace its life. The two-term convention. Washington declined a third term in 1796; every President followed for a hundred and forty four years, and Grant and Theodore Roosevelt were refused third terms by their parties on the ground of the rule. Franklin Roosevelt broke it in 1940 and 1944, and the Twenty Second Amendment, ratified in 1951, made the limit law.
The Conventions of the United States Constitution
2. Contrast the treatment of long-standing practice in the United States and the United Kingdom. In the United Kingdom a long practice accepted as obligatory is a convention and shapes how legal powers are used, and the courts do not test it against a superior text because there is none. In the United States a practice that conflicts with the text is struck down however long it has run: INS v. Chadha invalidated a legislative veto that appeared in some two hundred statutes.
3. Name three American conventions that are still conventions. Senatorial courtesy on appointments within a State; the practice that presidential electors vote for the candidate to whom they are pledged; and the concession of a defeated candidate followed by a peaceable transfer of power. The filibuster is a Senate rule rather than a convention strictly, resting on Article I section 5.
4. Why are American conventions weaker than British ones? Because the enforcement mechanism is different. In a Westminster system a broken convention is met by the withdrawal of confidence, which ends a government. In a presidential system the President holds a fixed term and cannot be removed except by impeachment, so the cost of breaking a convention is diffuse, and may be zero where Congress is controlled by the President's own party.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.