The Facts about Unwritten Constitutionalism: A Response to Professor Rubenfeld

Professor Jed Rubenfeld’s essay “The New Unwritten Constitution” makes some sensible interpretive and normative points. But it seems to assume an empirical picture that is overdramatized. The right starting point is a positive rather than normative account of unwritten constitutionalism. What is it? How broad or narrow is its domain? How has it changed over time? The best positive account suggests that, on a continuum between wholly literalist constitutional interpretation and wholly nontextual or extratextual interpretation, the Court spends most of its time oscillating within a rather narrow band closer to the middle of the continuum than toward either extreme. The interactions among the Court, the other institutions of the national government, and the populace ensure that any systematic push toward one end of the spectrum or the other will prove selflimiting. So the problem of unwritten constitutionalism is normatively important, but it is not nearly as empirically important as Professor Rubenfeld appears to believe. A preliminary point is that scholars should steer away from sensational charges that this or that decision is either a lamentable exercise in “unwritten constitutionalism” or a laudable but hypocritical one. The first charge commonly is made by textualist critics of nontextualist decisions written by nontextualist Justices, the second by nontextualist critics of nontextualist decisions written by textualist Justices. But there is nothing unique to constitutional law in this debate. In federal jurisdiction the same debate appears in the guise of