I am pleased to welcome to ELB Book Corner George Thomas, author of The (Un)Written Constitution. Here is the first of three posts:

As we prepare for the Supreme Court to overturn Roe v. Wade, the country is once again debating whether unenumerated rights are constitutionally protected. Justice Samuel Alito’s leaked draft opinion in Dobbs v. Jackson Women’s Health Organization, the Mississippi abortion case, insists that a woman’s right to choose to terminate her pregnancy is not found in the text of the Constitution. It’s true the Constitution does not explicitly enumerate such a right. But the Constitution also says nothing about Congress delegating its power, and yet Alito is certain it prohibits Congress from delegating “major questions” to administrative agencies.

As Justice Sonia Sotomayor candidly put it during oral argument in the Dobbs case: “There’s so much that’s not in the Constitution.” How we read and interpret constitutional text largely rests on our unwritten ideas about the Constitution, and our most pressing constitutional debates are largely about what unwritten understandings and principles should guide our reading of text. This is the central claim of my The (Un)Written Constitution recently published by Oxford University Press. I’m grateful to Rick Hasen for inviting me to write about it on the Election Law Blog.

There’s nothing unusual about relying on unwritten understandings to bring constitutional text to life. Yet this point is obscured by the most prominent judicial advocates of textualism and originalism, as well as their political champions (unlike originalist scholarship where unwritten understandings are often an important feature of constitutional analysis). The late Justice Antonin Scalia relished pointing to departures from constitutional text as departures from the Constitution, even while his jurisprudence relied on unwritten understandings. Similarly, Republican politicians tend to insist that we are either following the text of the Constitution or following our policy preferences. We persistently see this trope of disciplining judicial discretion by relying on text at Supreme Court confirmation hearings.

The (Un)Written Constitution seeks to dispel this mythology. The book is written for a general audience as originalist and textualist jurists have come to dominate the bench, and their constitutional understandings have become an important feature of our politics. But it should be of interest to scholars as well. Yet The (Un)Written Constitution draws from judicial opinions and political practices rather than scholarly disquisition. It focuses largely on Supreme Court opinions and the arguments of the justices to make visible the unwritten ideas that drive textual interpretation. I begin with two jurisprudential giants of the second half of the twentieth century, Justices Hugo Black and Antonin Scalia, who helped bring textualism and originalism to the bench, powerfully shaping our current debates about constitutional interpretation.

Beyond Supreme Court opinions, the book turns 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.

Yet The (Un)Written Constitution does not defend a particular theory of constitutional interpretation; it seeks to illustrate that allapproaches to constitutional interpretation rest on unwritten ideas. This is an inescapable feature of our written Constitution, not a defect or a bug. What approach is most faithful to the Constitution? I leave that judgment to the reader.