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Prolegomena To A Meaningful Debate Of The “Unwritten Constitution” Thesis, Thomas B. Mcaffee

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Seventeen years ago Professor Grey launched the modern debate over the idea of an unwritten Constitution by suggesting that the key to defending modern fundamental rights decision-making might be to rediscover the founding generation's commitment to natural law and unwritten sources of basic rights. Some modern Supreme Court decisions, Grey suggested, might be better justified by reliance upon the methodology suggested by Justice Chase's famous opinion in Calder v. Bull than by looking to the justification for judicial review offered by Chief Justice Marshall in Marbury v. Madison. Grey's arguments for the unwritten Constitution idea has struck a chord …