This essay explores different relationships between constitutional identity and constitutional politics. One purpose is descriptive. The first five sections briefly discuss the five relationships between constitutional identity and constitutional politics. Constitutional politics may be an instrumental means for achieving a particular constitutional identity; the means designed to achieve a particular constitutional identity; constitutive of constitutional identity; the constitutionally prescribed means for achieving a constitutional identity; or the constitutionally prescribed means for achieving any constitutional identity. The more fundamental goal is to undermine the “apple of gold” metaphor as a device for thinking about constitutional regimes. Constitutional politics in most constitutional regimes is as constitutive of constitutional identity as the substantive principles announced in such documents as the Declaration of Independence.

The unwritten constitution of the United States includes the Aristotelian and Gödelian Constitutions, the various constitutions in and outside of the courts, and the features of distinctive constitutional regimes. This chapter details these unwritten constitutions and highlights the empirical dimensions of constitutionalism in general and of American constitutionalism in particular, emphasizing how the empirical and normative dimensions of constitutionalism cannot be separated. Constitutionalism is an intricate blend of law and politics, not a means of separating law from politics. Written and unwritten constitutional politics intertwine with written and unwritten constitutional law in ways ignored by both legal and political science versions of the law/politics distinction. This chapter also explores some dynamics in contemporary constitutional politics in the United States and shows that changes in unwritten constitutional politics have not yet been captured by written or unwritten constitutional law. Bringing the structure of constitutional politics back into the structure of constitutionalism promises better constitutional analysis and, perhaps, better constitutional practice.

The passive voice is preferred by many students of comparative judicial politics during the prologue to their tales of judicial power. Constitutions are framed and ratified. Legal and constitutional rules and standards are announced. The precise meaning of these rules and standards is debated. Courts are established. Judges are appointed. Jurisdiction is conferred. Legal and constitutional disputes are placed on the agenda of these courts. Legal and constitutional arguments are made. Agency is absent from both sentences and analysis.

Constitutional politics shifts sharply to the active voice between oral argument and disposition. Judges make decisions. Many elected officials oppose those judicial rulings. Executives refuse to implement court orders. Legislators propose contrary constitutional amendments. Political activists demand that elected officials replace the offending judges by legal or extralegal means. Supporters who mobilize to defend the judicial decision wax eloquent on the virtues of an independent judiciary.