The Invisible Constitution in Comparative Perspective

Default Rules: Open-textured provisions can be rendered determinate via 

general default rules, e.g., a default rule of deference to democratic 

institutions.

Precedent and Historical Practice: Within a construction zone, precedent 

and historical practice can liquidate the meaning of provisions that are 

irreducibly ambiguous or vague.

Each of these methods of construction can reduce the degree of underdeter-

minacy created by vague or open-textured language.

The point we have been developing can be summarized as follows:

Characteristically, vagueness or open texture in the communicative content 

of a constitutional text is resolved by a legal norm that enables determination 

of the legal content or legal effect of the text.

Because “construction” in the technical sense in which we are using that word 

is just the activity that ascertains the legal content and effect of a text, it follows 

that vagueness in communicative content is usually resolved by construction –  

although there may be exceptions.

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3.5.  Constitutional Text and Extra-textual Sources

The question addressed by this chapter concerns the relationship between 

originalism and an unwritten or invisible constitution. Up to this point, we 

have been concerned with the preliminary question, “what is originalism?” 

Having answered that question, we can now return to our problem: can orig-

inalism (as we now understand it) embrace a partially unwritten or invisible 

constitution? Because the phrases “unwritten constitution” and “invisible 

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Here is one possible exception: there may be some cases in which contextual enrichment 

precisifies a vague word or phrase. That is, there may be cases in which the semantic content 

contributed by a term is vague, but the communicative content is not vague because the pub-

licly available context adds precisification – reducing the zone of underdetermination.

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Originalism and the Invisible Constitution 

79

constitution” are unfortunate for our purposes, we can ask this question more 

clearly: can originalists embrace extra-textual sources of the legal content of 

constitutional doctrine and practice? We can address this question in two steps. 

First, we need to say something about extra-textual sources – what are they? 

Second, we need to investigate the role that extra-textual sources can play 

in constitutional interpretation and construction. When we have taken those 

two steps, we will be able to give an abstract answer to our question about orig-

inalism and extra-textual sources of constitutional doctrine and practice. After 

we state the abstract answer, we will turn to a more particularized inquiry.

3.5.1.  Typology: Sources of Constitutional Norms

What are the sources of constitutional norms? That’s a big question. To make it 

more manageable, we can begin by distinguishing between two kinds of sources, 

which we can call “textual sources” and “extra-textual sources.” We might think 

of the textual sources as divided into two categories. The first category consists of  

contiguous strings of constitutional text that are marked off as discrete units  

of constitutional meaning; we can call these text strings “clauses.” The second 

category of textual sources concerns the properties of the text that emerge from 

the ways in which individual clauses relate to one another. We can call these 

relationships between clauses “structural features of the constitutional text” or 

“structure” for short. Thus, textual sources include clauses and structure.

The second kind of source comes from outside the constitutional text – 

extra-textual sources. At this stage of our investigation, we want to suspend 

judgment about the legitimacy of these extra-textual sources – we are merely 

listing some of the possible candidates for the role of plausible sources of 

constitutional norms. Again, we can categorize the possibilities. One cate-

gory consists of foundational documents other than the Constitution of the 

United States; examples include the Declaration of Independence, the Treaty 

of Paris, and the Articles of Confederation. Another category consists of doc-

uments and records that relate to the framing and ratification of the original 

Constitution and its amendments; examples include The Federalist Papers, 

Madison’s notes on the Philadelphia Convention, and the records of the rat-

ifying conventions. A third category of possible sources consists of moral and 

political values.

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 The fourth category is social norms and values; the content 

34 

This third category – moral and political values – raises certain worries about the use of the 

word “source,” because some legal positivists may believe that moral facts cannot determine 

legal content. Let us set aside positivist worries about use of the word “source” to describe the 

role that political morality could play in determining the content of constitutional norms; if 

you wish, you can substitute “constitutional actors’ beliefs about moral and political values.” 

The third category is described in terms of the values themselves (or the officials’ beliefs about 

them).

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Lawrence B. Solum

of these norms may correspond to true propositions of political morality, but 

this need not be the case. The fourth category refers to what is sometimes 

called “ethos” – the positive morality of a particular political culture. The 

fifth category is institutional practice. One particularly salient member of this 

category consists of judicial decisions and opinions that establish authoritative 

precedents. But the practices of nonjudicial actors could also serve as a source 

of constitutional norms; sometimes the term “historical practice” is used to 

describe a subset of this category. Finally, the logical space of extra-textual 

sources includes the idea that constitutional law might simply be “made up” 

by some official; judges come to mind.

Our typology is summarized in Table 

3.1

.

Table 3.1.  Sources of the Legal Content of Constitutional Doctrine  

in the United States