The (Un)Written Constitution

George Thomas is the Wohlford Professor of American Political Institutions and Director of the Salvatori Center at Claremont McKenna College. Professor Thomas is a regular contributor to The Constitutionalist.

This essay first posted at Starting Points: A Journal of American Principles & American Practices.

“The use of words is to express ideas . . . But no language is so copious as to supply words and phrases for every complex idea, or so correct as not to include many equivocally denoting different ideas.”

James Madison, Federalist 37

Conservative originalists like the late Justice Antonin Scalia relish pointing to departures from constitutional text as departures from the Constitution. Yet Scalia’s originalism relied on unwritten ideas. This is true of all approaches to constitutional interpretation. Many of our most important constitutional debates, contrary to some of our most prominent originalist jurists, are not about whether to follow constitutional text; they are disputes about what fidelity to text requires. And how we read the text inevitably turns on our unwritten understandings.  

But this truth is obscured by the public debate around originalism, which is too often framed as either sticking to the text of the Constitution or going beyond it and making things up. My new book, The (Un)Written Constitution (Oxford, 2021), corrects this framing. Drawing from judicial opinions and political practices rather than scholarly disquisition, I focus largely on Supreme Court opinions and the arguments of the justices to make visible the unwritten understandings and ideas that drive textual interpretation. Beyond Supreme Court opinions, I turn to prominent political figures such as James Madison, who had a hand in working out constitutional meaning based on sparse text. In explicating the Constitution, these judicial and political opinions offer us a great debate on the political theory that underlies the written Constitution. Across a range of constitutional disputes—from the separation of powers to the meaning of freedom of speech, from partisan gerrymandering to the reach and limits of Congress’s power to regulate interstate commerce, from racial discrimination to same-sex marriage—The (Un)Written Constitution illuminates the unwritten understandings that inform our disputes about the written Constitution.

Whether originalist or not, nearly everyone agrees that the ideas of those who framed the Constitution and its amendments should help shape our interpretation of text. So, too, with those who ratified the Constitution and its amendments. But just how determinative should these understandings be? Are we bound by historical expectations? Or are we only bound by the general sentiments and aspirations of those who framed and ratified the Constitution? Does this include the political theory that informed American constitutional institutions and ideas? Does it include philosophical and moral principles—what Edward Corwin famously called the higher law background of American constitutional law—that inform and underlie the Constitution? To what degree should tradition, precedent, and prudential considerations inform our interpretation of text? We won’t find the answers to these questions in constitutional text. Yet we cannot escape these questions. They lurk behind our debates on how to best understand the Constitution, and they largely turn on unwritten ideas.

This is true even for textualists like Scalia. The defining feature of Scalia’s thinking is his insistence on interpreting constitutional text based on the original understanding of those who ratified it. To do otherwise is to indulge a “living constitution” that changes and evolves based on current understandings, rendering the written Constitution “useless.” This sentiment has come to frame public debate about constitutional interpretation and especially discourse on the Supreme Court. Praising Justice Scalia during his confirmation hearings, Justice Brett Kavanaugh frequently turned to his well-thumbed pocket Constitution to suggest that either we are interpreting the precise text of the Constitution or we are going beyond interpretation and basing our judgments on the best policy. 

Yet the very nature of a written constitution requires us to interpret the written text based on its underlying ideas. Not because we are trying to rewrite the Constitution to make it accord with our policy preferences, but because the text does not explain itself. The meaning and significance of a written constitution is itself the subject of debate. In Federalist 37, Madison pointed to the limits of language in conveying complex ideas and concepts by way of a written text given the “complexity and novelty of the objects defined.” Moving beyond the text is an inescapable feature of interpreting the written Constitution. 

Yes, sometimes the text is exquisitely clear. Article II instructs us that the president must be 35 years of age and serve for four years. There is no need to move beyond the text to understand the constitutional command in this case. But we also come to text that gives Congress the power the power to “declare War,” along with text that vests the “executive Power” in the president and makes the president “Commander in Chief of the Army and Navy.” How do we determine whether Congress’s power to initiate war is exclusive or precisely what the executive power includes? What about the Fourteenth Amendment’s command that no state shall deny any person of the equal protection of the laws? For example, Justice Scalia was absolutely certain that the Fourteenth Amendment’s promise that “no state shall deny any person the equal protection of the laws” forbids states from prohibiting interracial marriage, but he was equally certain that this textual provision does not bar states from prohibiting same-sex marriage. Why? Constitutional text says nothing about either. How we apply the text to these particular cases turns on unwritten understandings that bring constitutional text to life.

There’s nothing unusual about this; it’s hardly news to scholarly defenders of originalism. Yet this point is obscured by the most prominent judicial advocates of textualism. There is a disjunction between the public face of textualism and originalism—where unwritten understandings are frequently denied or simply merged with text—and the sophisticated scholarship that has grown up around originalism where unwritten understandings are not only acknowledged but are also a powerful feature of originalist theory. As constitutional issues have become a more visible part of our ordinary politics, it’s crucial that we have a better sense of how the unwritten Constitution shapes our understanding of the written Constitution—whether we are “strict constructionists,” “originalists” of one sort or another, “moral readers,” or “living constitutionalists.” Can the president fire a special counsel tasked with investigating possible violations of law by the president? Can a sitting president be indicted? Can Congress delegate its power to the president? Can Congress impeach an officer and prohibit them from holding any office of public trust after they have left office? These pressing constitutional disputes turn on unwritten understandings. So, too, do foundational concepts and principles that we have long taken for granted. The power of the Supreme Court to find laws unconstitutional turns on unwritten ideas. 

Consider an excellent suggestion from Justice Kavanaugh in an essay insisting on the precise text of the Constitution: “Every time we re-read the text of the Constitution, which we should do regularly—and I mean word for word—we should also re-read Marbury v. Madison (1803), the case where the Court articulated and first exercised the power of judicial review. For that case has profound lessons to this day about the status of the Constitution, how to interpret the Constitution and the Judiciary’s role vis-à-vis other branches in interpreting the Constitution.” Take this advice. Read the text of the Constitution as you read Marbury. If you do, you’ll immediately notice that when Chief Justice Marshall gets to the argument justifying judicial review, the central logic of his argument is rooted in unwritten assumptions about the nature of the written Constitution. Marshall’s argument is rooted in, to borrow Alexander Hamilton’s words from Federalist 78, the “nature and reason of the thing.” It is rooted in a political theory of written constitutions. Marshall argues that “all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be, that an act of the legislature repugnant to the constitution is void.” As Marshall insists, this “theory is essentially attached to a written constitution, and is consequently to be considered by this court as one of the fundamental principles of our society.” 

But do courts have the power to declare ordinary laws unconstitutional? Marshall concludes that courts must have this power: “If the courts are to regard the constitution, and the constitution is superior to any ordinary act of the legislature; the constitution, and not such ordinary act, must govern the case to which they both apply.” To do otherwise, Marshall argues, to refuse to allow the courts to declare acts of the legislature void if they go against the Constitution, “would subvert the very foundation of all written constitutions.” The crux of Marshall’s argument for judicial review turns on his unwritten theory; he does not even cite constitutional text for his central contentions.  

Justice Kavanaugh insists that in deciding these issues, the Marshall Court focused on the “precise words of the constitutional text. It did not seek to find the best policy.” Nor did it ask “what [is] the best way to do things.” Kavanaugh is right that Marshall did not ask about the best policy or the best way to do things. We can agree that courts should not be deciding constitutional cases by asking “what’s the best policy?” Here again we have the suggestion that either we are interpreting based on the text or we are going beyond interpretation and basing our judgments on the best policy or the best way to do things. Yet Marshall’s opinion in Marbury teaches us to reject this false dichotomy. His argument for judicial review is based on the essential features of America’s written Constitution that are rooted in unwritten understandings. 

Still, Kavanaugh is right to call our attention to the text; it informs us about the structure and logic of the Constitution. But it alone does not do the labor textualists assign to it. We can be committed to faithfully following the text and still need to move beyond the precise words of the Constitution to faithfully interpret it. Nearly all contemporary jurists think that Marbury is rightly decided, even while agreeing that judicial review is not specified by the constitutional text but inferred from the political theory implicit in the Constitution. When we consider just how Marshall turns to the text in Marbury, we could do the same with nearly any clause of the Constitution. Marshall asks: If the Constitution commands that no state shall pass an ex post facto law and a state does so, doesn’t this violate the very idea of the written Constitution as fundamental law?

If the Fourteenth Amendment declares that no state shall deny any person within its jurisdiction the equal protection of the law and a state does so, doesn’t this violate the Constitution? Yes! The hard labor here necessarily turns on the underlying constitutional logic that makes sense of the precise text of the Constitution. How do we determine whether a specific law violates a constitutional provision? When same-sex couples objected to state laws that prohibited them from marrying one another precisely because they were of the same sex, they were making a claim about the due process and the equal protection clauses of the Fourteenth Amendment. Their claim was not about the best policy or about doing justice outside the Constitution. It was about a constitutional command: No state shall deny any person liberty without due process of law or deny any person in its jurisdiction the equal protection of the laws.

Now it may be that these couples were wrong, as Justice Scalia argued in his dissenting opinion in Obergefell v. Hodges (2015). But Scalia, just as much as the same-sex couple making the claim, offered an underlying theory of the Constitution that said the best interpretation of the equal protection clause and the due process clause does not extend them to same-sex marriage. The couple pressing the claim offered a different theory to make sense of the text. Both of these claims turn to constitutional text and are compatible with it. The text does not tell us which interpretation is better; it is our unwritten theory that does that. The real debate here is a debate about the best understanding of unwritten principles.

Yet The (Un)Written Constitution does not defend a particular theory of constitutional interpretation; it seeks to illustrate that all approaches to constitutional interpretation rest on unwritten ideas. All approaches rest on some sort of political theory of the Constitution that frames how we should understand text. This is an inescapable feature of our written Constitution, not a defect or a bug. What approach is most faithful to the Constitution? What approach best captures the meaning of constitutional text? I leave that judgment to the reader. 

The fact that all constitutional interpretation rests on unwritten ideas about the political theory that underlies the Constitution does not make it illegitimate interpretation, nor does it mean that anything goes. It means, rather, that we have the burden of explaining the unwritten understandings we draw on to make the best sense of the written Constitution. We cannot escape making constitutional judgments that are not based in text. Such judgments, like Scalia’s defense of originalism, are constructed by constitutional interpreters as part of an effort to apply constitutional text. There is no getting around this. There is no safe space that allows us to avoid constitutional judgments that are not determined by text, just the reasons we give for making them.

Wherever we turn to illuminate constitutional text, we are implicitly or explicitly rendering constitutional judgments. Giving our reasons for doing so is the burden—and the promise—of constitutional self-government.

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