Written and Unwritten Constitutions

by Keren Wang

Ph.D. Candidate
Dept. of Communication Arts & Sciences

A central focus of my research revolves around the distinction between written and unwritten constitutions. Written constitutions are formal legal documents creating and maintaining a self-referencing political entity for the legitimate expression of the sovereign willUnwritten constitutions are socially embedded rule-frameworks governing social relations particular to a given society’s conditions and its intrinsic contradictions. The U.S. Constitution is a textually brief and rigid document. As the highest law of our vast and diverse land, it managed to endure for more than two hundred years with relatively few revisions (in comparison, the French Constitution underwent 17 major revisions since the end of the ancien régime). The remarkable stability of the U.S. Constitution is in part due to its limitedness. It is not meant to be an all-encompassing legal document governing all human transactions within our country. It does not seek to provide the absolute guiding principle regulating the private domain of the citizens, Rather, it is a political constitution for matters chiefly concerning the public sphere. Underneath our indivisible “One Nation,” there are unwritten constitutions that form collective beliefs and values and shape and regulate the human transactions at the communal level.

The Preamble to the U.S. Constitution, in my opinion, provides the key to understanding that political relationship. “We the People” implies that the United States is a republic grounded in popular sovereignty. The People as a singular noun implies the indivisibility and absoluteness of citizens understood in terms of their collective public capacity, not as “sovereign subjects” but as the sovereign in itself. However, the political “one-ness” of “we the people” does necessarily colonize or displace our heterogeneous private and communal lifeworlds.  If we accept this basic separation between the public and private spheres, and between political and communal constitutions, it should be apparent that the U.S. Constitution (in its written form) at its core concerns the relationship between the sovereign and its citizens. From this interpretative angle, it should be evident that the Second Amendment should be interpreted in terms of its core political objective: citizens’ exclusive ownership of the state’s instruments of violence. Given the intrinsic limitations of the scope of our Constitution, the political goal of our right to bear arms must be considered separately from private and communal considerations.

There are divergent private sentiments and communal attitudes concerning the nature of firearms: whether we personally love or fear guns, and whether or not allowing or forbidding guns will make our community more or less safe. Those are important issues, of course, but perhaps they are considerations better to be decided on the ground at a communal level, and should not fall within the jurisdiction of our political (written) constitution. Being a popular sovereign republic implies there is no “Her Majesty’s Navy.” The central element of the right to bear arms as a political question has to do with our citizens’ power as the exclusive legitimate owner of the state’s instruments of violence, including the military and public security apparatus.  Likewise, when understood in conjunction with the Preamble, the “well regulated militia” of the Second Amendment implies the citizen as both responsible for and beneficiary of the collective security of the republic. And the right to bear the state’s instrument of violence should not be unconditionally delegated to an abstracted governmental entity, for such an act is a surrender of absolute civilian leadership.