When the American colonists charged that some British colonial policies and practices were unconstitutional, they appealed to what was generally conceived as an unwritten constitutional tradition that combined the practical good sense of English experience with standards of conduct that were simply, or naturally, equitable and right. Though the principles of this constitutional tradition were scattered among state documents, reported cases of the common law, treatises, and other writings, their status derived not from having been written or enacted but from their perceived origin in sources like custom, divine will, reason, and nature. These principles were thought superior to acts of Parliament, whose status did depend on their enactment.
While invoking unwritten higher law, however, the colonists were implicitly challenging its efficacy. To the charge of taxation without representation, Parliament responded with the theory of virtual representation. The colonists rejected this doctrine and insisted that as a practical matter responsible government depended on the ballot, not on government's respect for natural justice. Belief in a higher law thus coexisted with a pessimistic view of human nature and a corresponding distrust of government.
Unlike Britain's constitution, the American Constitution was established through ratification, a form of enactment. As the supreme law of the land this enacted Constitution consigns appeals from its authority to the category of extralegal considerations. But foreclosing the constitutionality of appeals from the highest written law did not depreciate unwritten law as such, for the written or enacted law could still reflect unwritten standards of natural justice and reason whose status did not depend on enactment. This was the claim of those who campaigned for ratification, as was to be expected from the rhetoric typical of public attempts to persuade.
This is not to say that anyone saw the proposed constitution as entirely consistent with the dictates of reason and justice. slavery and the equal representation in the senate of small and large states are examples of acknowledged compromises with contingencies that would not bend to principle. Nevertheless, the argument for ratification was full of references to higher norms as standards for evaluating constitutions, as principles behind its rules and institutions, and as objectives of the system as a whole. In the federalist #9 and #10, alexander hamilton and james madison not only presented the Constitution as an attempt to reconcile democracy with minority rights and the common good, but they also stated that the fate of democracy justly depended on that reconciliation. In The Federalist #78 Hamilton defended judicial review and recognized the role of judges in "mitigating the severity and confining the operations" of "unjust and partial" enactments. In The Federalist #51 Madison said, "Justice is the end of government" and that it "ever will be pursued until it is obtained, or until liberty be lost in the pursuit." And in the same number he described checks and balances as a "policy of supplying, by opposite and rival interests, the defects of better motives." Taking this statement at face value would require as a prerequisite to a full understanding of the Constitution knowledge of the "better motives" that constituted part of the model for what the Framers wrote.
It is a matter of central importance that appeals to ideas like justice were not expressed as appeals to this or that particular version but to the general idea itself. Aware of the difference, Hamilton urged readers of The Federalist #1 to rise above "local prejudices little favorable to the discovery of truth." He recalled the frequent claim that Americans would decide the possibility of rational government for the whole of mankind, a claim that might redouble efforts to rise above parochialism by adding "the inducements of philanthropy to those of patriotism." Equally important, however, was his acknowledgment of the great number and power of "causes which … give a false bias to … judgement." And he urged "moderation" on those "ever so thoroughly persuaded of their being in the right." This appeal suggests the value of self-critical striving for truth, an attitude more of confidence in progress toward truth than in claims to possess it.
Further indication of the Constitution's dependence on commitments that some theorists believe written constitutions can displace is the fact that properties of the Constitution as a whole influence the interpretation of its parts. In addition to the rhetoric of its preamble and of its draftsmen, the document reflects a concern for simple justice by virtue of its written character. As written communication to an audience of indefinite composition, size, and duration, the document presupposes that virtually anyone can come to understand what it means. Presupposing a large and lasting community of meaning, it anticipates a community of interests embracing all to whom it would potentially apply or who would accept it as a model.
Because of their content, provisions like the tenth amendment and the old fugitive slave clause are at odds with the community of interests presupposed by the Constitution as a whole. They are at odds with themselves by virtue of their enunciation as parts of the whole. This tension justified john marshall's nationalist construction of the Tenth Amendment, abraham lincoln's view that the Constitution had put slavery on the path of ultimate extinction, and the Supreme Court's application of the bill of rights to the states through the incorporation doctrine. Observers have interpreted the acceptance of this kind of construction as a sign that the nation has an unwritten constitution. But therapeutic constructions might as easily indicate the power of a written constitution to undermine the parochial and particularistic aspects of its content, separable as the written word is from the physical presence of its authors and their particular needs and conceptions.
The implications of the Constitution's written character bear on a protracted debate among constitutional theorists over the possibility of limiting the discretion of judges in difficult constitutional cases involving human rights, especially rights to substantive due process and equal protection. Many participants in the debate share an academic moral skepticism that finds no meaning in general normative concepts beyond the particular conceptions of historical individuals or communities. They diminish simple justice with quotation marks, and they hold particular conceptions of justice interesting primarily as facts that influence other facts, not as beliefs that can be morally better or worse than other beliefs. Rejecting the object of its quest, they also reject traditional moral philosophy as a method of acquiring knowledge. They treat the beliefs of persons and communities as matters essentially of historical fact, to be established by empirical methods, with some room for conceptual analysis, but not for judgments of right and wrong.
To these commentators, talk of reason and justice is essentially rationalization of personal preference, class interest, community morality, and the like. And because they tend to believe that elected officials have a stronger claim to represent the community, they argue that judicial review often involves the imposition of minority preferences on the majority. In an effort to reconcile judicial review with majoritarianism these theorists have tried to link the meaning of general constitutional norms with the intentions of the Framers, tradition, existing and projected community morality, the institutional prerequisites of democratic decision, and other sources whose content they perceive essentially as matters of fact or uncontroversial inference. The effort has failed largely because each source yields conflicting options, not simple, consistent answers. And when the skeptics make their selections, they inevitably (if covertly and therefore irresponsibly) make normative judgments whose rationality their position would force them to deny.
The failure of these skeptical theorists to extirpate normative judgments from decisions about the meaning of constitutional provisions has strengthened the case for moral philosophy in constitutional inquiry, which, in turn, has exacerbated apprehension of unrestrained judicial power. But renewed concern for natural justice need not threaten hopes for limiting judicial discretion. Those who take seriously the idea of justice as something higher than their particular conceptions will value the self-critical striving for moral and political truth recommended in The Federalist #1. This attitude is itself a limitation on discretion of the most objectionable variety because it is the antithesis of willful assertiveness.
Arguments for taking natural justice seriously might begin by reflecting on the apparent power of ordinary political debate to change minds about justice and related ideas. This familiar fact shows that, as ordinary citizens understand it, political life presupposes simple justice. Moral skeptics err in supposing that continuing disagreement about justice proves that debate is pointless or that there is nothing to debate about. If there are moral truths to be known, as is ordinarily presupposed, agreement is not the test of what is right. Holding that agreement is the test may signal that one abandons ordinary presuppositions, but it is not an argument for doing so. Academic inquiry begins with ordinary presuppositions. And though constitutional theorists have not reached agreement (a good thing, for universal consensus would remove the impetus for reflection and improvement), they have been unable to avoid ordinary presuppositions about justice and the value of reasoning in deciding what the Constitution means. Perhaps this is a reason to value self-critical striving for the best constructions to which constitutional language, tradition, and opinion are open.
Sotirios A Barber
Brest, Paul 1981 The Fundamental Rights Controversy: The Essential Contradictions of Normative Constitutional Scholarship. Yale Law Journal 90:1063–1109.
Grey, Thomas C. 1978 Origins of the Unwritten Constitution: Fundamental Law in American Revolutionary Thought. Stanford Law Review 30:843–893.
Harris, William F., II 1982 Bonding Word and Polity: The Logic of American Constitutionalism. American Political Science Review 76:34–45.
Moore, Michael S. 1982 Moral Reality. Wisconsin Law Review 1982:1061–1156.
——1985 A Natural Law Theory of Interpretation. Southern California Law Review 58:277–398.
"Unwritten Constitution." Encyclopedia of the American Constitution. . Encyclopedia.com. (January 21, 2019). https://www.encyclopedia.com/politics/encyclopedias-almanacs-transcripts-and-maps/unwritten-constitution
"Unwritten Constitution." Encyclopedia of the American Constitution. . Retrieved January 21, 2019 from Encyclopedia.com: https://www.encyclopedia.com/politics/encyclopedias-almanacs-transcripts-and-maps/unwritten-constitution
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