The Myth of the Written Constitution

62 Pages Posted: 11 Dec 2008 Last revised: 7 May 2009

See all articles by Todd E. Pettys

Todd E. Pettys

University of Iowa - College of Law

Date Written: December 10, 2008

Abstract

Many Americans have long subscribed to what this Article calls the myth of the written constitution - the claim that the nation's constitution consists entirely of those texts that the sovereign American people have formally ratified, and the claim that the will of the American people, as expressed in those ratified texts, determines the way in which properly behaving judges resolve constitutional disputes. Drawing on two different meanings of the term myth, this Article contends that neither of those claims is literally true, but that an attachment to those claims serves at least three crucial functions. Subscribing to the myth helps to ease the tension created by the American people's paradoxical beliefs that they are morally entitled to govern themselves and that human beings often cannot be trusted to behave in morally praiseworthy ways; it helps to ease the tension between Americans' commitment to self-rule and their attraction to judicial supremacy; and it helps to secure the strong sense of nationhood that so many Americans deeply desire. The Article suggests that embracing the myth of the written constitution for such instrumental purposes need not be seen as a shameful act of self-delusion, despite the fictive qualities of the myth's claims. So long as courts and scholars maintain the necessary conditions, the American people can responsibly embrace the myth as an act of "poetic faith."

Keywords: constitution, written, unwritten, ratified, unratified, myth, faith, originalism, living constitutionalism, nation, judicial supremacy, democracy

JEL Classification: K00, K19, K39, K49

Suggested Citation

Pettys, Todd E., The Myth of the Written Constitution (December 10, 2008). Notre Dame Law Review, Vol. 84, p. 991; U Iowa Legal Studies Research Paper No. 08-53. Available at SSRN: https://ssrn.com/abstract=1314452

Todd E. Pettys (Contact Author)

University of Iowa - College of Law ( email )

Melrose and Byington
Iowa City, IA 52242
United States
319-335-6814 (Phone)
319-335-9098 (Fax)

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