3 - Originalism and the Invisible Constitution

Summary

Although the written provisions of the United States Constitution are sometimes contrasted to an “invisible” or “unwritten” constitution, those labels are misleading. This Chapter explores the relationship between originalism and extratextual sources of constitutional law. This investigation begins with a brief explication of the originalist family of constitutional theories and proceeds to a typology of extratextual sources of constitutional law. Originalists should embrace the use of sources outside the text when they provide context that disambiguates or enriches the literal meaning of the constitutional text. But originalism should reject the use of extratextual sources (such as the moral beliefs or policy preferences of judges) as the basis for constitutional doctrines that contradict the constitutional text. The Ninth Amendment of the United States Constitution provides an important test case for originalism, because the text itself presupposes the existence of unenumerated “rights retained by the People.”