What the Constitution Doesn’t Say
During oral argument at the Supreme Court in December over Mississippi’s abortion ban, Justice Sonia Sotomayor laid bare a fundamental truth: “There’s so much that’s not in the Constitution.”
Her point is a deep one, and salient to the abortion debate: The text of the Constitution does not explicitly affirm the right to abortion; no one disagrees with that. But the Constitution protects far more than what it literally describes. Unwritten ideas necessarily guide even the strictest readings of the text, despite what some originalist jurists like to believe.
[Adrian Vermeule: Beyond originalism]
This can be seen in just about every major constitutional debate, as I explore in my new book, . Take, for example, the recent decision by the Court’s six conservatives to the Biden administration’s COVID-vaccine mandate. The ruling was based on the idea that Congress cannot delegate “major questions” to administrative agencies, in this case the Occupational Safety and Health Administration. The major-questions doctrine may be justified by a certain understanding of the separation of powers, as Justice Neil Gorsuch argued in , but it is not found in constitutional text. Even the Court’s power to strike down laws as unconstitutional is not specified