ELB Book Corner: George Thomas: “The Constructed Constitution”

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

ELB Book Corner

In the first post, I pointed to the unwritten ideas that constitutional interpretation necessarily rests on, noting that this point is obscured by textualist and originalist jurists. In making this point, The (Un)Written Constitution seeks to illustrate that most of our constitutional disputes depend on constitutional construction. We are not simply drawing out the latent meaning of text. Rather, we are engaged in a process of constructing constitutional meaning based on our ideas about the logic and nature of the Constitution and how it ought to apply to a never-ending series of questions.

Consider the First Amendment’s prohibition against “abridging the freedom of speech, or of the press.” What does that freedom entail? Does it allow an opposition party or private citizen to criticize the sitting government? This question was the subject of heated debate in the 1790s, less than a decade after the First Amendment was ratified. While there was agreement that the text protected the freedom of speech and of the press, there was profound disagreement on the scope of these freedoms.

At the time, most sitting Supreme Court justices held that the First Amendment allowed the government to punish speech that brought public officials or the government into disrepute. Presiding over the trial of a critic of President John Adams, Justice Samuel Chase argued that a political minority must “surrender up their judgment” once a government was selected, and that “private opinion must give way to public judgment, or there must be the end of government.” In contrast, James Madison argued that interpretations like Chase’s prohibited the “right of freely examining public characters and measures, and of free communication among the people … which has ever been justly deemed the only effectual guardian of every other right.” The disagreement between Chase and Madison turned on how they understood the nature of republican government, not on the text of the Constitution.

A similar debate occurred around “the executive power” in Article II. Did the president have the power to remove executive branch officers who had required Senate approval to be appointed in the first place? This famous debate of 1789 yielded a number of positions, all of which turned on ideas about the separation of powers and the nature and logic of the different branches of government, not simply on the text of the Constitution. This debate persists to the present day.

Our understanding of republican government shaped how we interpret freedom of speech just as our understanding of the separation of powers shaped how we read the executive power and the question of presidential removal. These answers are not obvious from the plain text of the Constitution, but constructed from unwritten understandings about concepts like separation of powers. 

Originalists insist that we should read the text as it was understood by those who framed and ratified it. They turn to history and linguistic conventions from the period under investigation to retrieve the “original public meaning” of the Constitution’s words. What would constitutional text have meant to an ordinary reader at the time of the text’s ratification? As Justice Amy Coney Barrett has argued, the original public meaning of the Constitution’s text, “and it alone,” is law. Yet this argument depends on unwritten ideas about the nature of the Constitution—on a disputed theory of what the Constitution is—not on the text. It may well be a powerful answer to guide our readings of text, but it is very much a construction of that text.

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