The Founders' Unwritten Constitution

Abstract

In seeking to understand and interpret our written Constitution, judges and scholars have often focused on two related issues: how did the founding generation understand the Constitution they created, and to what extent should that understanding be relevant to modern constitutional interpretation? This article will address the first of these questions, but in a manner that profoundly affects the second question as well. I will suggest that the founding generation did not intend their new Constitution to be the sole source of paramount or higher law, but instead envisioned multiple sources of fundamental law. The framers thus intended courts to look outside the Constitution in determining the validity of certain governmental actions, specifically those affecting the fundamental rights of individuals. Like Jefferson Powell's recent scholarship suggesting that those who met in Philadelphia intended their own subjective intent to be irrelevant to later interpretation,' my conclusion makes clear that the framers intended something independent of their own intent to serve as a source of constitutional law.