By ERIC SEGALL
Review of The (Un) Written Constitution, by George Thomas
New York, NY: Oxford University Press, 2021
What role does the constitutional text play in our country’s politics and courts? Where the words of the Constitution are clear, such as the requirements that each state gets two senators or the president must be thirty-five, we follow those directives without much question (although in the former case with substantial angst). But how important a role does the text play in litigated constitutional law cases? That is the question at the heart of Professor George Thomas’s excellent new book “The (Un) Written Constitution.” His answer is very little, and that is the correct one.
Before turning to the substance of Thomas’ arguments, it is important to note that this book is extremely well-written and accessible enough for well-informed non-lawyers but also sufficiently sophisticated to appeal to constitutional law professors—no easy trick. Above all, Thomas does a masterful job presenting opposing arguments in their strongest lights before he tears them down. He takes textualist arguments seriously, even when he rejects them, which is exactly how a scholar should treat counterarguments.
Pick just about any disputed important constitutional law question that Americans care about and the text simply cannot provide an answer. Does the first amendment’s command that Congress make no law abridging the freedom of speech bar federal campaign finance legislation? Does the equal protection clause of the fourteenth amendment allow states to ban same-sex marriages? Does the second amendment permit states to ban assault rifles? Thomas argues that these and other disputed and important country-defining issues simply cannot be resolved by judges without recourse to non-textual principles, policies, and theories of constitutional democracy. In his words: “our central constitutional debates, which have been with us from the beginning, are debates about unwritten ideas and understandings. This is true of even the most scrupulous [self-defined] textualists” (15).
Thomas devotes substantial time to showing that even Justices Hugo Black and Antonin Scalia, perhaps the two most prominent textualists to ever serve on the Court, consistently and inevitably had to rely on unwritten values and arguments to reach their preferred outcomes. Justice Black, who called himself a “constitutional literalist” (17), was famous for pulling out a small Constitution from his pocket and asking where in the document an alleged right (say privacy) could be found. He viewed “constitutional text [as] a limitation on…judicial activism” (17).
Yet, Justice Black consistently issued decisions and took positions based on unwritten principles, policies, and politics. His well-known view that the fourteenth amendment only incorporated the specific rights in the first eight amendments, for example, was based not on text but on “his understanding of the proper role of the legislature and judiciary in a democracy” (23). Black thought limiting incorporation to those rights specifically enumerated in the Constitution would substantially reduce judicial discretion. But that notion reflects an unwritten policy judgment as well as a contestable reading of the ninth amendment reflecting historical investigation and political preferences, not text.
Similarly, Justice Black read the word “liberty” in the fourteenth amendment to only include those rights spelled out elsewhere in the Constitution. But that reading is not required by the text of the amendment, which, as Thomas points out, does not say “no state shall deny any citizen a right enumerated in the first eight amendments to the Constitution” (27). Rather, the amendment uses the word “liberty.” Also, although Thomas does not spend much time on the issue, Black quite reasonably did not interpret the phrase “no law” in the first amendment literally, yet the word “no” is not susceptible to differing interpretations. Black knew that in this context “no” does not mean “no.” The reality, as Thomas spells out quite persuasively, is that Justice Black rested many if not most (maybe even all) of his constitutional interpretations on unwritten values and principles.
In Thomas’ astute hands, Justice Scalia fares even worse than Justice Black when it comes to his alleged textualism. Scalia remains even after his death “the personification of textualism and originalism in the public mind” (15). Yet, as I have tried to show in my own work, and as Thomas demonstrates in this book, Scalia could no more avoid non-textual and non-historical arguments than other Justices.
For example, Scalia’s well-known critiques of the Court’s abortion, same-sex marriage, and same-sex sodomy decisions all rest on his view that constitutional rights must either be listed in the text or have been traditionally and historically protected by our society. But, as Thomas points out, Scalia did not support that view through text or history but rather his ideal version of a good judiciary (43). In this sense, Scalia and Black used similar approaches (though Black had a different view of tradition). Thomas astutely says that Scalia:
Reads constitutional text and tradition through the lens of limiting judicial discretion. Limiting judicial discretion, however, is a feature of his understanding of democracy; it is not derived from constitutional text. It is the text that is the law and not the intent of those who authored the text. Yet Scalia often rejects plain meaning textualism when it comes to the Constitution. (43)
Thomas takes Scalia to task for not engaging with the text (and history) of the privileges or immunities clause but simply dismissing out of hand the now famous arguments by the lawyers (and Justice Thomas) in McDonald v. City of Chicago that it is that clause, not the due process clause, that is the font of many constitutional rights. Here I have a quibble with Thomas’ analysis because it was coherent for Scalia to say that text and history must sometimes give way to longstanding judicial interpretations. Thomas could have more effectively pointed to numerous Scalia decisions overturning federal laws based not on text or history but Scalia’s personal views of federalism. His anti-commandeering and sovereign immunity opinions fall into this category but Thomas does not use them to show how Scalia often acted hypocritically when it came to his alleged desire to limit judicial discretion.
Thomas does effectively show that Scalia’s interpretations of the equal protection clause rely on non-textual and non-historical preferences. Although Scalia interpreted the language of the fourteenth amendment to bar racial discrimination, he refused to apply it to other forms of arbitrary distinctions such as those related to gender and sexual orientation discrimination. As Thomas points out, however, that judgment is not supported by the open-ended text, and numerous law professors, including self-identified originalists such as Will Baude and Steven Calabresi, “argue that the original meaning of the equal protection clause put forward an anti-caste principle that prohibited arbitrary classifications among citizens” not limited to race (51). But “in Scalia’s hands, the text would read something like ‘no state shall deprive any person of equal protection of the laws on the basis of race’” (50). To put it another way, Thomas asks how Scalia “can be so sure that original meaning prohibits bans on interracial marriage but equally sure it does not forbid prohibitions on same-sex marriage” (49). The answer does not lie with text or history but contestable and personal values and principles not shared by other judges and scholars who have studied the imprecise language and contested historical accounts of the fourteenth amendment.
After showing that neither Justice Black nor Scalia could avoid using non-textual policy preferences to anchor their constitutional positions, Thomas turns his attention to a host of important constitutional law disputes such as those involving freedom of speech and religion and the separation of powers to demonstrate that non-textual principles and unwritten policies inevitably shape judicial decisions. These discussions show how little a role text actually plays in our constitutional landscape. This review cannot do justice to how powerfully Thomas makes his case but below are several examples.
The question of what the phrase “executive power” in Article II means has led to serious divides among the Justices. In perhaps the most important separation of powers case in our history, Youngstown Sheet and Tube Co., v Sawyer, Justice Black interpreted this phrase extremely narrowly to stop President Truman from seizing the nation’s steel mills during the Korean War. To reach that conclusion, Black had to “embellish constitutional text by presuming the sort of power being exercised [was] legislative in nature and therefore [did] not truly entertain the notion that Truman’s exercise of power could be executive” (99). But the dissent saw the issue quite differently and adopted a much broader interpretation of “executive power.” Whomever had the more persuasive answer, in the context of a planned nationwide strike and the possible harm that work stoppage could potentially cause to our troops abroad, values and principles separate from the text played a major role in all of the Justices’ decisions.
Similarly, Justices Thomas and Scalia vehemently disagreed over whether the war on terrorism allowed President George W. Bush to detain American citizens accused of being enemy combatants without a trial in front of an Article III court (and jury). In Hamdi v. Rumsfeld, Bush argued that during times of war the executive could detain American citizens accused of being terrorists and deny them access to due process because of the President’s duty to protect the American people. Justice Thomas essentially accepted this argument while Scalia flatly rejected it saying that, unless Congress abolishes the writ of habeas corpus, which it hadn’t done, American citizens accused of crimes, including treason, deserve an Article III jury trial. The plurality opinion written by Justice O’Connor split the difference, as was her style, and said that Hamdi was entitled to a neutral decision-maker but not necessarily a jury trial or even the presumption of innocence. Thomas’ point, which is indisputable, is that none of these quite different positions flow from the text of the Constitution and all of them are informed by unwritten determinations about the proper balance between security and freedom. Text, as always, simply could not and did not drive an answer.
The (Un) Written Constitution also devotes considerable time to discussing how judicial interpretations and constructions concerning the freedom of speech must be based on political and legal theories separate from the text. The author discusses the founders’ debates over the freedom to criticize the government, the Alien and Sedition Act, and prior restraints as well as current theories concerning the freedom of speech. His conclusion is simply right:
Text might be helpfully understood based on the history and debate that informed its framing and ratification. Yet when it comes to the First Amendment, whether it is religion or speech, understanding these more abstract provisions depends on the political theory that underlies the Constitution. Yet even plumbing these, we cannot escape making constitutional judgments of our own. If we take an originalist position to construct what a reasonable ratifier would have thought of these amendments, in the case of free speech it’s quite likely that there will be powerful evidence on both sides of the question (and that original meaning is underdetermined). (80)
And so it goes for virtually every corner of litigated constitutional law. Whether the issue is the appropriate reach of the commerce clause, the President’s authority to fire federal officers (where there is no specific text available), or gun rights, the text will not drive judicial outcomes. Thomas does not say that the text is completely irrelevant, but it is mostly unhelpful. And that idea raises my final quibble about the book. Throughout his analysis, Thomas suggests that the text should be the starting part of the analysis but that text cannot by itself determine constitutional results in litigated cases. This perspective is quite similar to one espoused by Professor David Strauss in his famous Harvard Law Review Foreword “Does the Constitution Mean What it Says?” Like Thomas, Strauss documented that most of our litigated Constitution is based on unwritten policies, theories, and values. Also like Thomas, he cautions judges not to say that the text is usually irrelevant. As I wrote in response to Strauss, that caution is the wrong approach and does not fully describe constitutional litigation.
Retired Judge Richard Posner used to observe on a regular basis that constitutional law is about creation not interpretation because of imprecise text and contested history. It appears Thomas agrees with that assessment. So why continue the pretense that text matters at all? It is true the Constitution lays out general aspirations such as freedom of speech, due process, and equal protection that judges can point to where relevant. But the Court has also protected unenumerated rights throughout its history. What the Supreme Court protects and what it doesn’t simply has nothing to do with text and we should stop pretending that it does. Judges admitting that text does not drive their decisions would lead to more transparency and shine a brighter light on how the Court’s constitutional law is really just common law constitutionalism, as Professor Strauss and others have argued for so long.
But that critique does not take much away from the power of Thomas’s book. Although others such as Akhil Amar and Laurence Tribe have written about the “Unwritten Constitution” and the “Invisible Constitution,” neither did so in such a persuasive, accessible manner. Thomas proves again and again that unwritten policies, preferences, values, and politics drive constitutional law. The legal realist is strong within this fine book and novices and experts alike will benefit greatly from reading about the values that underlie our (un) written Constitution.
Posted on 5 January 2021
ERIC SEGALL is Ashe Family Chair Professor of Law at Georgia State University College of Law. He is the author of Originalism as Faith (Cambridge, 2018) and Supreme Myths: Why the Supreme Court is Not a Court and Its Justices are Not Justices (Praeger, 2012).
