Originalism and the Unwritten Constitution

51 Pages Posted: 23 Nov 2013 Last revised: 10 Dec 2013

Date Written: October 21, 2013

Abstract

In his book, America’s Unwritten Constitution, Akhil Reed Amar contends that to properly engage the written Constitution, scholars and laymen alike must look to extratextual sources: among them America’s founding documents, institutional practices, and ethos, all of which constitute Amar’s “unwritten Constitution.” In this Article, I argue that contemporary originalist constitutional theory is consistent with reliance on extraconstitutional sources in certain circumstances. I establish a framework for revaluating the use of extratextual sources. That framework categorizes extratextual sources and explains their relevance to constitutional interpretation (the meaning of the text) and constitutional construction (elaboration of constitutional doctrine and decision of constitutional cases). I conclude by applying the framework to a question posed by Akhil Amar: Can vice presidents preside over their own trial upon impeachment? A negative answer to this question is consistent with an originalist constitutional theory that carefully cabins the use of extratextual sources in constitutional interpretation and construction.

Keywords: Originalism, Constitution, Interpretation, Construction, New Originalism, Akhil Reed Amar, Unwritten, Impeachment

Suggested Citation

Solum, Lawrence B., Originalism and the Unwritten Constitution (October 21, 2013). University of Illinois Law Review, Vol. 2013, pp. 1935-1984, 2013. Available at SSRN: https://ssrn.com/abstract=2358423 or http://dx.doi.org/10.2139/ssrn.2358423

Lawrence B. Solum (Contact Author)

Georgetown University Law Center ( email )

600 New Jersey Avenue, NW
Washington, DC 20001
United States

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