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2013 U. Ill. L. Rev. 1935 (2013)
Originalism and the Unwritten Constitution

handle is hein.journals/unilllr2013 and id is 1979 raw text is: ORIGINALISM AND THE UNWRITTEN CONSTITUTION* Lawrence B. Solum** In his book, America's Unwritten Constitution, Akhil Reed Amar contends that to properly engage the written Constitution, scholars and laymen alike must look to extratextual sources: among them America's founding documents, institutional practices, and ethos, all of which constitute Amar's unwritten Constitution. In this Article, I argue that contemporary originalist constitutional theo- ry is consistent with reliance on extraconstitutional sources in certain circumstances. I establish a framework for revaluating the use of ex- tratextual sources. That framework categorizes extratextual sources and explains their relevance to constitutional interpretation (the meaning of the text) and constitutional construction (elaboration of constitutional doctrine and decision of constitutional cases). I con- clude by applying the framework to a question posed by Akhil Amar: Can vice presidents preside over their own trial upon impeachment? A negative answer to this question is consistent with an originalist constitutional theory that carefully cabins the use of extratextual sources in constitutional interpretation and construction. I. INTRODUCTION: THE PROBLEM OF AN UNWRITTEN CONSTITUTION FOR ORIGINALISTS In 1975, Thomas Grey asked, Do we have an unwritten constitu- tion?' His question has been echoed by Michael Moore,2 Antonin Scal- ia,' and others.' Recently, Akhil Amar has provided his own distinctive * (c) 2012 by the Author. Permission is hereby granted to make copies in tangible or electron- ic form, including but not limited to the distribution of this work in whole or in part for educational or scholarly purposes. ** John Carroll Research Professor of Law, Georgetown University Law Center. 1. Thomas C. Grey, Do We Have an Unwritten Constitution?, 27 STAN. L. REV. 703,703 (1975). 2. Michael S. Moore, Do We Have an Unwritten Constitution?, 63 S. CAL. L. REV. 107, 107 (1989). 3. Antonin Scalia, Is There an Unwritten Constitution?, 12 HARV. J. L. & PUB. POL'Y 1 (1989). 4. The literature on unwritten constitutions, unenumerated constitutional rights, the Ninth Amendment, and related topics is vast. Some of the work that influenced the writing of this Article in particular include: Jed Rubenfeld, The New Unwritten Constitution, 51 DUKE L.J. 289 (2001); Suzana Sherry, The Founders' Unwritten Constitution, 54 U. CHI. L. REV. 1127 (1987); Adrian Vermeule, The Facts About Unwritten Constitutionalism: A Response to Professor Rubenfeld, 51 DUKE L.J. 473 (2001). 1935