When covering Griswold v. Connecticut in my constitutional law course, I begin by playing portions of the oral arguments. The class sits back and listens as Justice Potter Stewart repeatedly asks a fumbling Joseph B. Clark, the attorney for Connecticut, the purpose of the legislation restricting the sale of contraceptives. Each time, Clark provides a different answer, including the population argument, to which he adds, “I personally am not too happy with it, but—” An exasperated Stewart responds: “Well, what argument are you happy with?” Nevertheless, Stewart did not join the majority in striking down Connecticut’s law as unconstitutional. And in his dissent, he penned some of the most memorable lines in any constitutional law casebook: “I think this is an uncommonly silly law.… But we are not asked in this case to say whether we think this law is unwise, or even asinine. We are asked to hold that it violates the United States Constitution. And that I cannot do.”
Only one other justice, Hugo Lafayette Black, joined Stewart’s dissent. Black is the subject of one of George Thomas’s chapters in The (Un)Written Constitution. Thomas focuses on Black’s own dissent in Griswold because he is interested in the justice’s textualist approach in limiting judicial power. As Thomas writes, “Black reasoned that any movement beyond the words of the Constitution itself was to indulge opinions based on ‘natural’ rights and justice” (p. 17). In Griswold, Black accused his brethren of doing just that. The majority was engaging in an effort “to keep the Constitution in tune with the times.” It was a philosophy Black rejected. If changing the Constitution was desired, individuals ought to pursue the amendment route. For Thomas, while Black insists “on the centrality of the text,” he nevertheless relies on “unwritten understandings” of the “proper role of the legislature and judiciary in a democracy.… The judiciary should not be in a position to second-guess the legislature—unless the Constitution very clearly marked off specific textual provisions that authorized judicial protection. In the vast majority of cases the democratic process should simply get its way” (p. 23).
In the following chapter Thomas analyzes the work of another—albeit quite different—textualist, Justice Antonin Scalia. According to Thomas, “like Justice Black, Scalia’s constitutional jurisprudence was driven by a desire to limit judicial discretion within a democracy” (p. 35). Scalia’s originalist approach is undoubtedly different from Black’s; he focused on the original understanding of the Constitution’s text to those who ratified it and its amendments while Black looked to the framers’ intent (p. 37). Nevertheless, according to Thomas, Black and Scalia are linked by their desire to limit judicial discretion (p. 43). In focusing on Black’s dissent in Griswold and Scalia’s dissents in similar cases like Casey, Lawrence, and Obergefell, Thomas has indeed identified areas of agreement between these two pathbreaking justices.
But Black and Scalia’s conceptions of the place of the judiciary in maintaining democracy were not ultimately in agreement. Consider the very law in question in the Griswold case, a Victorian era statute—known as a “little Comstock law”—designed to protect the good citizens of Connecticut from their own immoral urges. As Connecticut attorney Clark stressed, this was not a dead-letter law because the Connecticut General Assembly routinely rebuffed efforts to remove it from the books. But that legislative body was grossly malapportioned. And in 1965, when the High Court was considering the state’s ban on contraceptives, that was about to change because state legislators had failed to enact a reapportionment plan consistent with the Supreme Court’s “one‐person, one‐vote” opinion of Reynolds v. Sims. I raise this case because Justice Black joined the majority. Here, Black was quite willing to use judicial authority to enhance democracy. Indeed, I would suggest that judicial interventions to enhance democracy defined much of his work as a justice. Black, a former US senator from Alabama, was the very first justice to call for an end to school segregation, denying southern state legislators the opportunity to continue a system of White supremacy. Black, along with Justice Douglas, resisted the horde of citizens and legislators eager to punish members of the Communist Party for their political advocacy during the McCarthy era. In pursuing his textualist approach to free speech, Black tried to draw a sharp textualist line between pure speech and symbolic speech. But he did so based on a conception of democracy defined by his fear of groups like the Ku Klux Klan, of which he was once a member.
Space constraints prevent me from discussing Scalia in as much detail, but few—if any—would suggest he was committed to using judicial authority in the same way. Scalia was willing to override the will of Congress to allow an influx of corporate cash in campaigns in Citizens United, and to do so again by severely limiting the Voting Rights Act in Shelby County. He also joined the majority in ending the Florida recount in Bush v. Gore. Finally, he often suggested that those interested in changing the Constitution pursue the amendment process while admitting that process needed amending. As Thomas suggests, Scalia spoke eloquently of protecting democracy from an unelected Court, but his definition of the concept was “quite simplistic” (p. 44).
What does all this mean for Thomas’s The (Un)Written Constitution? While it is true that Black and Scalia used similar language about abiding by the Constitution’s text in critiquing fellow justices for straying too far from it, it is essential to understand the underlying principles that defined their interpretative approaches. To some extent, this is Thomas’s point. Justices, even those who preach fidelity to the text, rely on unwritten principles that are not part of the Constitution. As he writes, “all interpreters are making constitutional judgments that are choices not determined by text and relying on constructions of one sort or another to do so” (p. 140). This is a plea for recognition of something Thomas rightly claims is inevitable in constitutional interpretation. But his comparison of Black and Scalia implies a closer alliance on those principles than their opinions, taken as a whole, in fact show.
Thomas’s focus is not just on Black and Scalia. In chapter 3, he explores early constitutional disputes about religious liberty and the meanings of freedom of speech and of the press in the context of Republican government. Chapter 4 considers the text and separation of powers. A fifth chapter returns to the concepts of unwritten understandings and the necessity of constitutional construction when interpreting the document. In each of the chapters, Thomas quite rightly argues that only with a close examination of these disputes can we understand “the political theory behind America’s republican experiment” (p. 60). For Thomas, this theory was not set by constitutional text, but the result of arguments about the “essential characteristics of republican government that the written Constitution rested upon” (p. 79).
The (Un)Written Constitution is a thoughtful, well-written slim volume that I could easily see assigning in an advanced undergraduate constitutional law course. Indeed, by paying close attention to Thomas’s arguments, students will surely emerge as more confident constitutional interpreters in their own right and enhance their understanding of the necessity of exploring the principles that underlie the opinions of the justices.
