The Unanimous Constitutional Waiver

A thought has just occurred to me about Justice Scalia's argument from tradition, which I critiqued in this post. From time to time I've had the thought that there is an automatic mechanism for waiving any provision of the Constitution, which requires actually no formal proceedings. The way it works is, everyone in the entire nation decides not to challenge violations of that provision in court (or at least everyone who might have standing to mount the challenge does). Then the unconstitutional practice goes unchallenged and unreviewed by the judiciary, and is allowed to continue. In other words, the people of the United States may at any time amend the Constitution by unanimous vote of non-litigation. You can make an argument that the prayer-at-school-graduations tradition Scalia waxes so nostalgic over had been the subject of a long-time sanction-by-lack-of-challenge, and therefore was perfectly constitutional.

But here's the thing about this unanimous constitutional waiver: it only holds so long as it really is unanimous. Saying, "yesterday everyone in the country was willing to give this unconstitutional practice a pass, so today your complaint against it is deemed invalid" is putting several carts and horses in awkward positions relative to one another. Yes, something which is technically unconstitutional can become kind of de facto constitutional if no one chooses to challenge it and give the courts an opportunity to declare it invalid. But, being de facto, this kind of informal constitutionality must perforce vanish as soon as the fact it depends on, no one's having challenged in a court of law, is no longer a fact! So yes, maybe long-held traditions are informally constitutional even if they seem to contradict what the Constitution says. But this only applies until someone decides to complain about it; after then, you can't rely on the historical tradition, you have to actually consider the merits of the individual case.