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27 Stan L. Rev. 703 (1974-1975)
Do We Have an Unwritten Constitution

handle is hein.journals/stflr27 and id is 721 raw text is: Do We Have an Unwritten Constitution?' Thomas C. Greyt In reviewing laws for constitutionality, should our judges confine them- selves to determining whether those laws conflict with norms derived from the written Constitution? Or may they also enforce principles of liberty and justice when the normative content of those principles is not to be found within the four corners of our founding document? Excluding the qu&tion of the legitimacy of judicial review itself, that is perhaps the most funda- mental question we can ask about our fundamental law. I. Ti PURE INTRPRT= MODEL For many years this most basic question has not much engaged the ex- plicit attention of constitutional scholars or of the courts or judges them- selves, with at least one important exception. That exception was Mr. Justice Black. Throughout his long and remarkable career on the bench, the most consistently reiterated theme of his constitutional jurisprudence was the need for fidelity to the constitutional text in judicial review, and the illegit- imacy of constitutional doctrines based on sources other than the explicit commands of the written Constitution.' It now appears that as a final mark of Mr. Justice Black's achievement, his jurisprudential view of constitutional adjudication may be returning to favor. In the last few years, distinguished commentators on constitutional law have begun to echo Mr. Justice Black's central theme, criticizing con- stitutional developments in terms that have scarcely been heard in the schol- arly community for a generation. The criticism has centered around the new fundamental interest branch of equal protection doctrine, and the emerging libertarian right of privacy in familial and sexual matters. The strand of criticism that I wish to focus on here has not alleged the impolicy of the new doctrines, or their lack of internal coherence or principled articulation-those are the familiar themes of contemporary constitutional commentary. Rather it has urged that because the new developments rest on principles not derived by normal * I would like to thank Professors John Ely and Hans Linde for their thoughtful comments on an earlier draft of this Essay. t- A.B. 1963, Stanford University; LL.B. 1968, Yale University. Associate Professor of Law, Stan- ford University. x. See, e.g., In re Winship, 397 U.S. 358, 377 (1970) (Black, J., dissenting); Griswold v. Con- necticut, 381 U.S. 479, 507 (z965) (Black, J., dissenting); Rochin v. California, 342 U.S. 165, 574 (1952) (Black, J., concurring); Adamson v. California, 332 U.S. 46, 68 (1947) (Black, J., dissenting). 703

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