RECAP: “The (Un)written Constitution,” James E. Fleming & Linda C. McClain Constitution Day Lecture w/ Claremont McKenna’s George Thomas

In describing the book from which his Constitution Day lecture took its title, Claremont McKenna Wohlford Professor of American Political Institutions George Thomas noted that his October 2021 Oxford University Press monograph was not composed with a strong position on the Constitution in mind. Instead, by taking a more conceptual or empirical perspective, his goal, he explained, was simply to show how jurists and scholars alike inescapably rely to one degree or another on unwritten ideas about the text—or, perhaps better, on ideas about what is not explicitly written into the text—when interpreting and litigating the constitutional questions we care most about.

The central claim of The (Un)written Constitution is specifically germane to textualist and originalist jurists, Prof. Thomas continued, given the degree to which they downplay and often disavow any reliance on presuppositions and antecedent, extratextual constitutional understandings in their jurisprudence. Hence, he opened the lecture with a look at the iconic late Supreme Court Justice Antonin Scalia, by way of a brief detour past current Justice, devoted originalist, and deep Scalia admirer Brett Kavanaugh, who recently commented that every time we re-read the Constitution, we should likewise revisit 1803’s Marbury v. Madison. An admirable and very much a worthwhile suggestion, Prof. Thomas offered, but one which should at least acknowledge the degree to which Chief Justice John Marshall’s spirited defense of judicial review turned on a theory of constitutions that is nowhere to be found in the United States’ charter (Marshall, in fact, didn’t even cite the text in laying out his primary holdings in Marbury).

Such an acknowledgment is probably also called for when it comes to considering the linchpin of Scalia’s impassioned case for originalism and textualism. Following original meaning, Scalia contended, is the best way to prevent judges from mistaking their own predilections for the law; it is necessary, that is, for ensuring that restraint, rather than discretion, governs constitutional interpretation. A powerful argument, to be sure, but one that is not rooted in the text—where in it is the need for judicial discretion mentioned?—but rather in Scalia’s own underlying assumptions and theories about the kind of democratic government that the Constitution rests upon. We see this bear out, for example, in his opinion in 2010’s McDonald v. City of Chicago, which affirmed that the 2nd Amendment, by way of the 14th, applies to states. Originalist scholars lined up to argue that both the 14th Amendment’s due process clause and its privileges and immunities clause supported this conclusion, but at the latter line of logic, Scalia balked. The due process clause was usable, he argued, because the liberties protected under it could be tethered directly to the Bill of Rights, whereas using the privileges and immunities clause, under which liberties were not delineated, invited judicial activism. Not only was this an instance of an originalist rejecting an interpretation of the original meaning of the 14th Amendment on the grounds that it was at odds with a century of previous legal scholarship on privileges and immunities; it was also a textualist citing an allusion to the Bill of Rights that is conspicuously absent in the text of the 14th Amendment but that is conveniently consistent with his unwritten understanding of a need to limit the discretion of judges.

As Prof. Thomas went on to show, the acts of grappling with and settling constitutional questions by turning to unwritten ideas about democracy is more or less as old as the nation itself. Take the 1798 Sedition Act. There was no disagreement at the time over whether the Constitution protected the freedoms of speech and press the Act raised questions about; the text made so much abundantly clear. Rather, its legitimacy hinged on determining what the protections for speech and press actually implied. On the one hand, Samuel Chase defended the Sedition Act by invoking Blackstone, arguing that a licentious press was particularly harmful to republican forms of government because of the ease with which such a press could corrupt public opinion and morals. Once an election ran its course, Chase reasoned, the printers must acquiesce. As a counter, Madison held that the new and distinct form of republican government practiced in the United States demanded establishing meanings for free speech and a free press that were unindebted to the British common law tradition. For Madison, power, in the United States, flowed from the people, who thereby had to be able to point out the failures of government in order to ensure that it [government] remained popular. Whether Madison or Chase was right is ultimately neither here nor there in the broader scope of Prof. Thomas’ talk. What’s of note here is how the fundamental nature of the First Amendment was being derived from ideas about democracy that existed outside of the Constitution. Constitutional meaning was being constructed and built, not interpreted.

This praxis of relying on constitutional judgments that aren’t anchored in text has, Prof. Thomas reiterated in closing, been a fixture in U.S. judicial history. In Shelby County v. Holder (2013), Justice Roberts placed federalism before voting rights while Justice Ginsburg inverted this order. Both reasonable, plausible arguments. Both arguments we should force ourselves to wrestle with, and yet, in a twist of fate that we need to start more dutifully placing front and center in our discourse, neither of them arguments that are capable of victoriously pointing to the text in a grand, “A ha!” moment.