John Gardner (University of Oxford – Faculty of Law) has posted Can There Be a Written Constitution? on SSRN. Here is the abstract:
The existence of unwritten constitutions, such as that of the UK, strikes some as puzzling. However the existence of unwritten constitutions turns out to be easier to explain than the existence of written constitutions, such as that of the US. In this paper I explore, and attempt to answer, some tricky conceptual questions thrown up by written constitutions.
And from the paper:
[M]y question is this: Can
(the rest of) constitutional law be entirely written? Or must it
always also include some customary law or case law?
The answer seems plain enough. On the day it is enacted a
new constitution is wholly written law. But that day does not
last. As soon as disputes start to arise that concern the meaning of
constitutional provisions, written constitutional law inevitably
needs to be filled out with case law and/or customary law. What
is written in the constitution needs to be invested with more
determinate meaning, and by and large this has to be done at the
point of its authoritative application, principally by judges. With
the passage of time, such judge-made law tends to predominate
over the parts of constitutional law that exist apart from it. With
the passage of time, one knows an ever-smaller proportion of the
law of the constitution – or at any rate an ever-smaller proportion
of the material that goes to make up the law of the constitution –
simply by reading the constitutional text.
Like other things we have said, this plain answer may strike
some as political explosive. It may seem to lead us straight into
the big controversies of contemporary US constitutional law. In
the red corner, ladies and gentlemen, those who insist that the
constitution is found in what was written and nothing but what
was written by the 1787 founders and their authorised legislative
amenders. And in the blue corner, those who say that the
constitution is a living body of law and should not be regarded as
frozen in time at the moment of enactment. Is this the fight we
are getting into? No. Nothing I have just said takes sides in this
or any other debate about how the US constitution should be
interpreted. I do not doubt, of course, the profound political
significance of such debates and – especially when the disputants
are Supreme Court judges – their huge potential consequences
for the future direction of America. My only point is this.
Inasmuch as these debates have huge potential consequences for
the future direction of America, that is because they have huge
potential consequences for the future development of American
constitutional law. And they have huge potential consequences
for the future development of American constitutional law
precisely because, in both corners, we have people with
proposals for how American constitutional law should be
developed. Both sides are assuming that it will be developed, and
that it will be developed by judges. The only question is, how
will it be developed? Which way are the judges to take it? Both
sides – or since it is not really a two-corner fight, I should really
say all sides – must be in agreement that US constitutional law is
not just what is contained in the text of the written constitution.
For all of them it must also include judge-made law. For if it did
not include judge-made law there would be no point in fighting
over how judges should make constitutional decisions. The only
possible reason for choosing a textualist Supreme Court nominee
over a purposivist, or an originalist-textualist over a strict-
constructionist-textualist, or a original-intent-originalist over an
original-meaning-originalist, or indeed a baggist over a raggist, is
that each of them, or at any rate each of them in combination
with some like-minded judges, will have the power to change
the law of the constitution by giving the constitution a meaning
different from the one that it would have under the authority of a
judge or a combination of judges from some rival camp.
Highly recommended. Download it while its hot!
I am in almost total agreement with the remarks from the main paper quoted above–with one qualification. As is frequently the case in discussions of this topic, there is a crucial ambiguity in Gardner's use of the word "meaning" in the underlined passage above. Gardner asserts that all of those who dispute about theories of constitutional interpretation, including originalists, textualists, and the rest, must agree that "judges will have the power to change the law of the constitution by giving the constitution a different meaning from the one that it would have [given a rival theory]." This is absolutely correct if we understand the word "meaning" in what I call its implicative sense–the sense in which the meaning of a constitutional provision is its implication for particular cases or for the shape of constitutional doctrine. Almost everyone agrees that judges can change the "meaning" of the Constitution in the implicative sense. In that sense, an originalist judge would "change the meaning" of the Constitution by overruling a precedent that was inconsistent with the original public meaning of the text.
But meaning has another sense–which I call the semantic sense of "meaning." This is the sense in which the "meaning" of a legal text is its "linguistic meaning"–or to put it differently, in the semantic sense of meaning, the meaning of a constitutional provision is the semantic content of the provision. In this sense of "meaning," Gardner's conclusion would be incorrect–because originalists or textualists take the position that judges do and/or should lack the legal power to change the linguistic meaning of the constitutional text. The linguistic meaning of the text, these originalists argue, is fixed (as a matter of linguistic fact) by patterns of usage at the time the text was framed and ratified.
Read Gardner!