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The Founders' Unwritten Constitution, Suzanna Sherry

Vanderbilt Law School Faculty Publications

In seeking to understand and interpret our written Constitution, judges and scholars have often focused on two related issues: how did the founding generation understand the Constitution they created, and to what extent should that understanding be relevant to modern constitutional interpretation? This article will address the first of these questions, but in a manner that profoundly affects the second question as well. I will suggest that the founding generation did not intend their new Constitution to be the sole source of paramount or higher law, but instead envisioned multiple sources of fundamental law. The framers thus intended courts to …