Arguments about the nature of judicial review and appropriate methods of constitutional interpretation based on the “writtenness”of the Constitution date back at least to Marbury v. Madison. There, Chief Justice Marshall famously wrote the following:

The powers of the legislature are defined, and limited; and that those limits may not be mistaken, or forgotten, the constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained?...

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Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be, that an act of the legislature, repugnant to the constitution, is void.

This theory is essentially attached to a written constitution, and is consequently to be considered, by this court, as one of the fundamental principles of our society.

This passage has fueled political, legal, and academic controversy for more than two centuries, with scores of commentators echoing Marshall’s contention that a written constitution requires judicial review and a nearly equal number attacking it. Marshall’s defenders argue that written constraints on the power of the political branches—indeed, the very notion of constitutional supremacy over ordinary law—would be meaningless if judges were required to enforce unconstitutional legislation. Critics counter that written constitutional commitments can be enforced through a variety of institutional mechanisms, not just judicial review. Moreover, the actual constitutional text, on which Marshall and his defenders place such weight, is completely silent on the question. Surely, the critics contend, that precludes any claim that judicial review is an essential feature of our constitutional design.

The back and forth is by now almost soothingly familiar. In recent years, however, a diverse group of constitutional theorists—ranging from Randy Barnett to Keith Whittington to Jack Balkin—has attempted to extend Marshall’s argument to less familiar terrain. In varying fashion, these theorists argue that “our commitment to a written constitution” entails not only judicial review but also an originalist approach to constitutional interpretation. Their argument takes several forms, some of them parasitic on other justifications for originalism, such as popular sovereignty and the rule of law. But in its strongest version, it is offered as a freestanding reason why judges should embrace an originalist approach to constitutional interpretation. The idea is that writing, by its very nature, fixes the meaning of a text at the moment it is written. Otherwise, written words are no more than meaningless marks on a page, subject to the whim and caprice of every individual reader who chances upon them. If this were true, we might as well have an unwritten constitution, which of course we do not. Ergo, the constitutional text must be interpreted according to its original meaning. That is simply what it means to be committed to a written constitution.

The Irrelevance of Writtenness in Constitutional Interpretation