Does the Written Constitution Matter?

Legal scholars continue to explore the frontier of constitutional interpretation, with recent books by Ilan Wurman (The Second Founding; A Debt Against the Living), Kurt Lash (The Fourteenth Amendment and the Privileges and Immunities of American Citizenship; The Reconstruction Amendments), Randy Barnett (The Original Meaning of the Fourteenth Amendment; Our Republican Constitution), and many others. This body of scholarship seeks to uncover the “true meaning” of key provisions of the Constitution, especially the text of the 14th amendment, often through historical research or linguistic analysis. Building on the pathbreaking historical work of Charles Fairman and Raoul Berger, each successive generation tries to explicate the intent of the 39th Congress in ways that are fresh and revealing.

For “originalists”—which thanks to the late Justice Scalia now includes everyone, according to Justice Elena Kagan—the goal is to determine the original public meaning of constitutional text at the time it was adopted. We have moved past open-ended “non-interpretive” theories attempting to justify treating the Constitution as a “living document” or judicial Ouija board—mere putty in the hands of activist judges free to legislate from the bench, pretending that their rulings are based on something other than their personal predilections. This anything-goes, “fantasy Constitution” formulation was quite popular with left-wing legal academics in the 1970s but has subsequently been abandoned, in favor of a more sober, text-based approach. Or has it?

Claremont McKenna College professor George Thomas, in his compact monograph The (Un)Written Constitution (2021), tries to turn back the clock to the halcyon days of freewheeling judicial activism. Clocking in at a mere 147 pages of text, Thomas purports to deconstruct the central claims of originalism and to debunk its chief proponent, the late Justice Antonin Scalia. (Inexplicably, Robert Bork merits a single mention.) This is an ambitious goal for a book containing five slim chapters. Does he succeed? In a word, no.  

Thomas begins by adducing—in aha! fashion—examples of the obvious: the Constitution (like all texts) is not self-executing; not all language in the Constitution has a self-evident literal meaning (“the text does not explain itself”); Justices and scholars have interpreted the Constitution differently throughout history, sometimes in a dubious manner; even those scholars purporting to be originalists often disagree regarding constitutional interpretation in particular contexts; some critics (citing Jonathan Gienapp and Eric Segall in particular) are skeptical of the claims of originalism; Justices from prior eras exhibited beliefs and attitudes in their opinions that may strike the modern sensibility as unfashionable or unenlightened; originalism, at least as espoused by Scalia in his dissenting opinions, would deny certain groups political gains granted by the Court (e.g., Obergefell v. Hodges) which progressive thinkers now take for granted, etc.

His conclusion: It is impossible to make sense of the Constitution by looking only at the words on the page. All judges, starting with Chief Justice John Marshall in Marbury v. Madison, have from time to time used extra-textual tools—logic, history, precedent, grammar, constitutional structure, political theory, guidance from the Federalist, semantics, context, etc.—in order to divine the meaning of the Constitution. These tools—the relevance of which is assumed but not ordained—are subject to debate. Therefore, Thomas concludes, claims that the authority of the Constitution derives from its text are false, or at least overblown. That claim (i.e., the primacy of constitutional text) is itself a mere assumption—one of many used by originalists to interpret the Constitution. All such assumptions are equally plausible, and debatable, but none are authoritative. They remain assumptions. Preferring one over another is a matter of subjective judgment. Accordingly, the very premise of originalism—that the Constitution should be construed based solely on its text—is invalid. “To make sense of text, we must go beyond text,” he contends.

It follows, Thomas argues, that constitutional interpretation is inevitably based on the “unwritten Constitution,” the understanding of which—like beauty—varies depending on the beholder. Ultimately, then, the meaning of the Constitution is indeterminate, and no school of interpretation can claim to be superior to another. Originalists cannot claim the moral high road. In fact, any interpretation that is not expressly contradicted by the text is fair game. In the face of textual silence, judges can and should resort to “unwritten understandings.” Indeed, the very concept of judicial review “turns on unwritten concepts and understandings.” Thomas’s skepticism regarding constitutional interpretation borders on nihilism, and sometimes crosses the line, such as his assertion that the “significance of a written constitution is itself the subject of debate.”

Lest the reader think that I am mischaracterizing Thomas’s argument (which conflates the crude textual literalism of Justice Hugo Black and Scalia’s sophisticated originalism), consider the author’s own words: Black’s belief that legislators, rather than judges, are the proper source of lawmaking in a democracy “is not derived from constitutional text”; “Scalia’s understanding of democracy [i.e, majorities rule, absent express constitutional restriction] is quite simplistic”; Scalia’s deference to legislatures absent a textual basis to intrude “is not evident from constitutional text”; “[c]onstitutional text does not tell us which originalist approach, if any, is required”;  the concepts of popular sovereignty and democratic self-government are not enshrined in the Constitution but merely rest on a “theory” advanced by proponents of judicial restraint; the “primacy of democracy” is an “unwritten background principle,” not the bedrock of our republic; and so on.

In contrast, originalists believe that the role of the judiciary—the “least dangerous” branch, in the words of Federalist 78—is to interpret the law. The Constitution has a fixed meaning (to the extent it can be ascertained), and can be changed only by formal amendment in accordance with Article V. Judges derive their moral authority from the text of the Constitution, which was ratified as the nation’s supreme law. When the meaning of particular constitutional text cannot be ascertained, judges should not guess; doing so would exceed the scope of their limited role. Nor should judges invent meaning when the constitutional text is silent.

Originalism is not a perfect technique, but it is the only mode of interpretation that comports with the primacy of the Constitution, respects popular sovereignty, and maintains the legitimacy of the judiciary. As Scalia once asked, “If the judge is not to look to the original understanding of the text, what is he to look to?” Robert Bork had the answer: “The judge who looks outside the Constitution always looks inside himself and nowhere else.” Judges untethered to the original meaning of the Constitution unavoidably decide cases based on their own subjective predilections—amounting to ultra vires legislation. The alternative to originalism is standardless judicial lawmaking. Government by a majority of nine unelected lawyers is not a republic serving “we the people.” The written Constitution must remain paramount.  

The “unwritten Constitution” is even more malleable than the “living Constitution.” Thomas posits that “the Constitution’s more abstract clauses, like due process and equal protection,” can be fleshed out by either legislatures or unelected judges; the choice “will inescapably turn on our unwritten understandings, which might be best thought of as constitutional constructions that situate discrete textual provisions.” This reductionist word salad recalls Justice William Douglas’s risible “penumbras, formed by emanations” from Griswold, and is just as unconvincing. 

If so many readings of the “unwritten Constitution” are possible, doesn’t this prove the wisdom of unelected judges exercising restraint, and leaving policymaking to the elected branches?

Thomas claims that his agnosticism regarding the primacy of the written Constitution “does not mean anything goes,” but he gamely defends the Court’s novel invention of constitutional protection for homosexual rights, same-sex marriage, equal treatment based on sex, and other rights not mentioned in the Constitution. He signals a willingness to embrace very abstract theories of constitutional interpretation (i.e., the 14th amendment prohibits all “caste-based” classifications), an expansive reading of the “privileges or immunities” clause, and an activist approach to voting rights. This list of currently fashionable issues conveniently mirrors the policy results favored by the Left. One wonders if Thomas’s embrace of “unwritten” norms—a euphemism for judges making stuff up—would be as cozy if the Court were adopting an agenda less congenial to the Left, such as recognizing a constitutional right to life, reinstating Lochner-like protection for economic liberties, circumscribing the commerce clause, or authorizing prayer in public schools.

Thomas invokes John Hart Ely (in 1980’s Democracy and Distrust, written at the apogee of non-interpretivism) in aid of his call for an activist role for the judiciary, but ignores Ely’s admonition that “if your job is to enforce the Constitution, then the Constitution is what you should be enforcing, not whatever may happen to strike you as a good idea at the time.” Thomas claims that “When the Court acts to protect the democratic process, it is not second-guessing democracy but reinforcing it,” without noting the incongruity of unelected judges overruling democratically enacted laws in the name of “protecting democracy.” Politics is a matter of compromise and trade-offs; its results must be judged by the polity, not robed elites in a life-tenured Ivory Tower.

Thomas is correct that most of the disputes among Justices and constitutional scholars are ultimately based on differing “political theories”; “these unwritten ideas drive our most persistent constitutional debates.” This admission inadvertently reveals the weakness of Thomas’s entire thesis. If so many readings of the “unwritten Constitution” are possible, doesn’t this prove the wisdom of unelected judges exercising restraint, and leaving policymaking to the elected branches? Thomas never squarely addresses this question. Content with the Court’s modern role as “Platonic Guardians,” as described by Judge Learned Hand in the 1958 Oliver Wendell Holmes Lectures, Thomas argues that judicial lawmaking is not just “legitimate,” it is “essential.” He concludes: “We are always going to have to make judgments about how best to apply the Constitution to our current circumstances and those judgments will always be subject to debate.” This is a trite tautology, not a reasoned argument.

Unlike Akhil Reed Amar’s similarly-titled 2012 book, The (Un)Written Constitution is superficial, derivative, and entirely predictable. At most, it is suitable for stimulating one side of a discussion in an undergraduate seminar, as a counterpoint to Bork’s The Tempting of America (1990), Greg Weiner’s The Political Constitution (2019), or a similar brief for judicial restraint. Moreover, the book is marred by unfortunate typos unbecoming of Oxford University Press. Thomas misspells the names of Supreme Court Justices (“Barret”), prominent scholars (“Calabersi,” “Segal”), and landmark rulings (“Obergeffel”).

Thomas does not lack self-regard. He ends his book with these grandiose words: “Welcome to the ongoing project of maintaining America’s constitutional experiment.” Based on Thomas’s meager rationale for the current culture of judicial activism, the prospects for the experiment are dim.