The New Unwritten Constitution

Abstract

Americans do not know what to think about unwritten constitutional law. On the one hand, we know we have it, and we have had it for a very long time. Unwritten constitutional law did not begin with Roe v. Wade. From the very beginning, American judges have been prepared to enforce constitutional rights that cannot fairly be said to derive from any enumerated textual guarantee. The Framers themselves, we are told, understood constitutional rights in unwritten, natural-law terms, drawing on the English lex non scripta and "ancient constitution" traditions passed down to them by Blackstone and others. Further, since at least 1890, when Christopher Tiedeman published his influential book on the subject, Americans have formulated their own distinctive idea of an "unwritten Constitution," neither natural nor immemorial, in which unenumerated constitutional rights are supposed to express the fundamental values or ethos of the living citizenry.