Written and Unwritten Constitutions

Constitutionalism is universal for rational beings. Individuals—like societies—have to govern themselves. Some do it well, others do it badly; but everybody does it—if only by default. Some try hard to govern their desires, aversions, appetites, and emotions by reason, while others freely subordinate their reason to those forces. We often refer to these contrasting types as possessing distinctive “constitutions” that embody and reveal different modes of individual decision-making. And as Plato pointed out in Books 8 and 9 of the Republic, regimes embody and reveal constitutional characteristics closely related to those of dominant individual types in the corresponding societies.

Although everyone has a constitution—individuals as well as societies—individual constitutions are almost always unwritten. Individual constitutions are like the British constitution: a conglomerate of customs, conventions, and traditions that govern political decision-making, or as A. V. Dicey put it, the set of all rules “which directly or indirectly affect the distribution or exercise of sovereign power.” Free people also exercise sovereign power over themselves, which is made manifest in the choices they make. If individuals did write down their constitutions, their writing would represent an effort to make explicit their modes of choosing. These would, in turn, reflect underlying predispositions consisting of principles, habits, customs, and traditions—both learned and inherited—that reflect their essential characters and motivate their choices. These underlying predispositions bind an individual to his past, motivate his future, and “constitute” his integrity, making it sensible to refer to him over significant spans of time by the same name. In the same way, a political constitution—if it is real and not merely an instrument of propaganda—holds a polity together from past to present to future, making it sensible to refer to that polity by the same name from one era to another.

The analogy between individual and political constitutions illustrates the fact that no legal order can be fully encompassed by written instruments, and so it must be elaborated by reference to its underlying historical and philosophic dimensions. Suppose that all Americans were required to write down their individual constitutions, containing all the rules and principles they used in making decisions. Suppose, further, that we were also required to justify each decision made—in terms of whatever constitutional rule or principle applied—with an “opinion” to be kept on file for possible use in lawsuits, since any injury resulting from failure to follow one’s constitution might give rise to a cause of action in tort. As the lawsuits began to multiply, we would each experience tension between what we “wrote” in our original document and what we actually “meant” when we wrote it. 

Once the tension was made explicit, we would begin “interpreting” our constitutions in accord with our “meanings” or “intentions” rather than boxing ourselves in with our words. In short, we would begin to see our words as one of many indicators of our meanings, rather than as wooden formulas that confine those meanings. We would also begin to realize that our real constitution pre-existed our written document, and that all we were really doing when we wrote was attempting to capture (however badly) the reality of our true selves in words, complete with its underlying background of historical experience (i.e., our unwritten constitution).

Whenever a constitution is written (as in the United States), the writing will represent an analogous set of principles, customs, and traditions that reflect and embody an underlying unwritten constitution. The latter will consist of the most important historical and philosophical foundations motivating its founders, without which the written constitution would make little sense. The proper interpretation (provision of meaning) of the written text of the constitution requires a faithful reading of these underlying foundations. Otherwise, the constitution becomes merely an arrangement of words (a “text”), without essential meaning other than what is supplied by ever-changing collections of interpreters over time. In that case, the constitution becomes a “dead letter” that cannot perform its central function of stabilizing a polity over long periods of time.

Classical Legal Naturalism

The historical and philosophical foundations of American constitutionalism include principles, traditions, customs, and conventions governed by long-accepted methods of legal analysis. Americans of the founding era uniformly presumed the applicability of such methods to the federal and state constitutions they adopted. These principles and traditions include precepts of the natural law and rules of traditional legal practice inherited from the common law. These principles and practices constitute a jurisprudential worldview that I call classical legal naturalism, or the naturalistic interpretive tradition. 

The central doctrine of classical legal naturalism is the declaratory theory of law, in which legal interpretation is conceived as a process of discovery—not of creation. Historically, it is more a tradition with ancient roots than a theory, and was given its modern formulation by Hugo Grotius, Samuel Pufendorf, Emmerich de Vattel, Edward Coke, and William Blackstone, among others. This worldview originates in the belief that the law is an objective reality that precedes its declaration by courts or other authoritative interpreters—a ratio legis, or “reason of the law,” that transcends any particular application. This means that the interpretation of any written legal instrument is a process of discovery, and the pre-existing legal truth that must be discovered is embodied in the will of the lawgiver. On that crucial point, all the great jurists of the seventeenth and eighteenth centuries agreed. They all developed rules designed to assist interpreters in their determination of that will, and all agreed on the rules to be applied.

For example, a summary of the formulations of Blackstone, Grotius, and Vattel reveals that for all three commentators (1) the will, or intention, of the lawgiver is the law; (2) discernment of intent must begin—but cannot end—with the words used by the lawgiver; (3) general custom and common usage are the standards for resolving ambiguities; (4) laws should not be read in such a way as to defeat other portions of the same law; (5) the object, end, or purpose of the law is crucial for discerning its meaning; (6) the effects of the law are to be considered only when the words would result in absurdity if applied. These are just a few examples of the wide jurisprudential agreement that existed among jurists during the two centuries prior to the American founding and that continued throughout at least the first century of our nation’s existence. Careful consideration of this jurisprudential tradition shows why no written legal instrument—whether contract, will, statute, treaty, or constitution—can survive a divorce from its historical and philosophical foundations.

The most important of the philosophical foundations is the natural law. Here it is important to distinguish, with Blackstone, between laws “declaratory of natural rights and duties” and laws “determinative of things indifferent.” It is the former, not the latter, that are derivable from the natural law. Further, according to Aquinas, the natural law is the imprint of eternal law upon the mind of a rational creature. Thus the “reason of the law” (ratio legis) is the law. It is reason in the act of constituting the legal order. Since the legal order, as experienced, is a historical reality, the methods and procedures used in the process of discovering and applying the ratio legis must be fully attuned to the historical and philosophical dimensions of legal experience. And, since the legal order itself must be compatible with the natural law, it is not surprising that Vattel and the other jurists cited above regarded all the rules of interpretation (and more) mentioned in this essay as fully derivable from it. 

The Progressive Assault on the Constitution

Beginning in the early twentieth century, progressive intellectuals attacked the separation of powers, federalism, and all the other facets of the Constitution they deemed to be “inefficient.” Leading the charge were such notables as Woodrow Wilson, Frank Goodnow, and John Dewey. Wilson deemed the Constitution to be an outmoded artifact of the theory of Newtonian mechanics. He desired a constitution based rather on the newly discovered theory of Darwinian evolution, upon which a new society could be constructed as a “great house . . .  where men can live as a single community, cooperative as in a perfected, coordinated beehive.” Goodnow, for his part, extended the critique of the Constitution to the Declaration of Independence, deploring the fact that, in America, individual rights were conceived as bestowed by a creator and grounded in natural law rather than by positive law laid down by the government.

Although Wilson, Goodnow, Dewey, and many other progressives probably would have preferred a wholesale overthrow of the Founders’ Constitution, a frontal attack was not feasible due to the attachment of most Americans to the written document. So they finally settled on the indirect approach of undermining the Constitution by stealth via interpretation by the courts, and by expanding the reach of the national government via the creation of the administrative state. What resulted was the so-called “living constitution,” explicitly inaugurated by Wilson in 1912 along the lines of the organic analogy with Darwinism. This move enabled the progressives to establish a pretended continuity of the living constitution with the original Constitution, thus allowing them to claim the authority of the framers for what was really a willful destruction of the framers’ work. Borrowing the words of the English philosopher Jeremy Bentham from another context a century before, the pretension was “a wilful falsehood, having for its object the stealing of legislative power, by and for hands which could not, or durst not, openly claim it, and but for the delusion thus produced could not exercise it.”

Thus the attack on the Constitution launched by the progressives in the early twentieth century was not merely an attack on the written constitution; it was also—and perhaps more importantly—an attack on the underlying unwritten constitution that was essential for understanding the meaning(s) embodied in the written text. Central to this project was a corresponding assault on the rules derived from the common law for the interpretation of written legal instruments. The chief aim and consequence of this move was to free judges and administrators to make policy according to their perception of the “needs of the moment.” It is the success of this progressive assault that has produced the living constitution, which is really a dead constitution that cannot perform the important function of stabilizing the American polity over time.

Evidence of the destabilization caused by our adoption of the living constitution can be seen in the sharp divisions that have emerged in American society during the past several decades. Many of the decisions that carried us away from the Founders’ Constitution also undermined those institutions that traditionally have been counted on to maintain social cohesion (e.g., those decisions that undermined the federal system, the role of religion in public life, traditional marriage and families, even the right to life, among many others). Most of these decisions could never have been made apart from the legal profession’s renouncing the naturalistic interpretive tradition and turning instead to legal positivism, the central purpose of which is to undermine the declaratory theory of law and the interpretive rules that flow from it. Thus the will of individual interpreters is substituted for the legal tradition, and the severe constraints on interpreters that the legal tradition imposes are removed.

In the classical legal tradition, “interpretation” is the activity of traveling back and forth between the whole and the parts, in an effort to discover the “reason of the law” that would reconcile the law’s underlying uniformity with differences in a multitude of particular applications. This is the activity that necessitates the development and use of legal conventions. In contrast, legal positivism, by divorcing positive from natural law (which is reason in act), effectively eliminates the ratio legis along with the richly textured set of legal conventions developed for centuries in the classical legal tradition.

Our Two Constitutions

As a result, we can now discern two types of written constitution: (a) a written text joined to a robust supporting structure of underlying principles and historical traditions (the Founders’ Constitution); and (b) a written text without its supporting foundation (the “living-dead” constitution of the progressives). Though the Benthamite fiction noted earlier has had the effect of blurring—if not eliminating—this crucial distinction, the fact is that the living-dead constitution of the progressives—a naked text stripped of its historical foundations and thus laid wide open to the whims, fads, and fashions of each generation of interpreters—represents a nearly complete destruction of the Founders’ Constitution.

The only remedy for this debacle is a return to the jurisprudential tradition that informed the Founders in 1787 and is the groundwork of the Constitution they wrote. Classical legal naturalism embodies a rich panoply of interpretive approaches that matches the rich texture of its subject matter. Careful attention to that tradition should put to shame all the contemporary controversies over originalism, textualism, non-interpretivism, and the like. No simple-minded “ism” is up to the task of properly reading the law. The law is not simple enough for that. And neither is the Constitution.

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