Seventeen years ago Professor Grey launched the modern debate over the idea of an unwritten Constitution by suggesting that the key to defending modern fundamental rights decision-making might be to rediscover the founding generation's commitment to natural law and unwritten sources of basic rights. Some modern Supreme Court decisions, Grey suggested, might be better justified by reliance upon the methodology suggested by Justice Chase's famous opinion in Calder v. Bull than by looking to the justification for judicial review offered by Chief Justice Marshall in Marbury v. Madison. Grey's arguments for the unwritten Constitution idea has struck a chord with many constitutional thinkers precisely because it links modern constitutionalism to a venerable past and presents recent developments as renewal rather than departure.
The “unwritten Constitution thesis” referred to in the title of this article refers not to the view that courts should be empowered to enforce rights not found in or inferred from the text of the Constitution, but rather to the historical claim that the founding generation saw the Constitution as including a written document and unwritten principles of fundamental law. Needless to say, this historical claim has been challenged. However, although the modern debate was launched seventeen years ago, many important issues remain unexplored to a large degree; the contestants have hardly engaged each other as to a number of central questions. The purpose of this article is to suggest why that may be and to offer suggestions as to the issues that need to be engaged if the historical thesis of unwritten constitutionalism is to be sustained or rejected on adequate historical grounds.
61 U. Cin. L. Rev. 107 (1992).
McAffee, Thomas B., "Prolegomena to a Meaningful Debate of the “Unwritten Constitution” Thesis" (1992). Scholarly Works. Paper 516.