It is useful to embrace continuity in describing basic differences we have in giving effect to the Constitution, especially if particular ways of communicating help us convey and understand what is at stake. The individual who originated the term “non-interpretivist” to describe judicial review implementing the unwritten constitution, for example, continues to believe that the best approach to constitutional interpretation is not “textualist,” but is properly characterized as “supplemental.” In his view, “much American constitutional adjudication, including but not limited to decisions under due process liberty and the right of privacy, involves the interpretation of an unwritten and essentially common law constitution, which supplements the primarily authoritative and essentially statutory written one.” Whatever terminology is used, it is important that we realize that “common law constitutionalists propose to use the cultural authority of the text Constitution to legitimize the existence of an unwritten constitution in which judges and other government officials create constitutional meaning and norms.”
There is little room for doubt that this notion of constitutional interpretation reflects the modern American belief that the meaning of the Constitution is appropriately altered as we gain increased understanding of the relationship citizens have with their government. Advocates of a moral reading of the Constitution generally believe that “the framers of the Constitution believed in unwritten higher law principles” and saw courts as “authorized to enforce natural rights and expound doctrines not found in the written Constitution.” The courts' commission to implement principles of natural law, on this view, evidences the founding generation's desire that the Constitution be an embodiment of a social contract where the people bargained for a government that would “protect” their “inalienable” natural rights. An assumption is that this form of constitutionalism involves “gradual, interpretive, and informal vehicles of change” and that such change, being “more easily corrected as a method of constitutional revision,” is “preferable to the Article V amendment process.”
This Article will assess these efforts at justifying the modern Court's role. In offering this evaluation, the author analyzes historical and normative questions to review both what our constitutional order has been, and should be, about. A thesis is that, whether it is labeled unwritten constitutionalism or not, under the open-ended fundamental rights approach to constitutional analysis that many would embrace, “the text of the Constitution” is “a rhetorical symbol used to persuade the public of the legitimacy of judicial policy making.” Indeed, unwritten constitutionalism becomes a way to link such a judicial role to the historical American commitment to popular sovereignty. Judges play the central role because they were given this role by those who drafted and ratified the Constitution.
Apart from the “historical” nature of some of the arguments advanced to defend the Court, it seems reasonably clear that even though we are not universally committed to being bound by an original understanding, some of our focus will need to be historical. We are trying to enlarge our understanding of the American system; one way to do that is to understand what those who designed it, as well as those who have lived with it, did in making sense of the system. Even when our task is basically “descriptive” in character, the answers we seek do not fall out automatically. Just the task of determining what our constitutional practice and dominant thoughts about constitutionalism have been is a tricky business, and it is not clear that answering these basically descriptive questions will supply us with the correct answer to the normative question that stands at the center of the debate. The result is that we must never forget that our ultimate concern relates to the question of the direction in which we should go and is therefore normative. This Article is an attempt to address these ultimate “oughts” of our constitutional order.
80 Or. L. Rev. 1245 (2001).
McAffee, Thomas B., "The Constitution as Based on the Consent of the Governed—Or, Should We Have an Unwritten Constitution?" (2001). Scholarly Works. Paper 530.