Text and Unwritten Understandings

Abstract

Abstract Unwritten ideas underlie all approaches to constitutional interpretation, as each approach has an implicit political theory that drives its understanding of text. Some jurists and scholars think that constitutional interpretation should include applying general principles and understandings in ways we may never have thought about before. Others insist that such work should come by way of democratic legislation or constitutional amendment, not by way of constitutional interpretation by unelected judges. Yet each approach rests on unwritten understandings—on a political theory that underlies the Constitution, which is the source of our debates about how to faithfully follow the written Constitution. This also requires that we weigh and balance the different parts of the Constitution to see how they fit together as a coherent whole, relying on judgments that are not rooted in text.