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Written constitutions are susceptible to informal changes that do not manifest themselves in alterations to the text, for instance as a result of judicial interpretation, legislative enactment or executive action. This phenomenon is well developed in the scholarly literature on constitutional change and informal constitutional amendment. But what remains understudied and undertheorized in Canada and the United States is how written constitutions change informally as a result of the development of an unwritten constitutional norm, otherwise known as a constitutional convention. In this Article, I hypothesize with reference to the Canadian and United States Constitutions that there exist two major categories of informal constitutional change by constitutional convention: incorporation and repudiation. I suggest also that incorporation and repudiation may each occur in two ways: incorporation may occur by filling an existing void in the constitutional text or by refining one of its existing provisions, and repudiation may result from creating a void in the constitutional text or from substituting one of its existing provisions. I then evaluate whether these four forms informal constitutional change by constitutional convention entail costs to the rule of law where constitutional meaning is rooted in the present public meaning of the constitutional text. My larger purpose in this Article is to invite a dialogue with comparative public law scholars on how unwritten constitutional norms change written constitutions so that we may ultimately better understand the forms and implications of unwritten constitutional change.

This Article posits that the British Constitution is changing by incorporating written principles that restrain Parliament through judicial review. The Author asserts that this constitutional model has basis in the common law and the orthodox theories of Blackstone and Dicey. In addition, the "ultra vires" doctrine supports the model and provides a basis for judicial review of Parliament. As constitutions may accommodate written and unwritten elements of law, as well as various means of enforcement and change, the Author posits that constitutions are defined by how strongly they reflect underlying legal norms. With a shift in the rule of recognition endorsing judicial review, this expressive function of constitutions democratically legitimizes constitutional texts as positivist expressions of popular will that bind Parliament. Therefore, courts may constitutionalize statutes or treaties coming over time to represent shifting norms through common-law adjudication. Furthermore, the Author illustrates that such a "quasi-written," common-law constitution is already emerging in the United Kingdom by examining cases based upon the Human Rights Act and the European Communities Act.

It is well known that the US Constitution has been amended twenty-seven times since its creation in 1787, but that number does not reflect the true extent of constitutional change in America. Although the Constitution is globally recognized as a written text, it consists also of unwritten rules and principles that are just as important, such as precedents, customs, traditions, norms, presuppositions, and more. These, too, have been amended, but how does that process work? In this book, leading scholars of law, history, philosophy, and political science consider the many theoretical, conceptual, and practical dimensions of what it means to amend America's 'unwritten Constitution': how to change the rules, who may legitimately do it, why leaders may find it politically expedient to enact written instead of unwritten amendments, and whether anything is lost by changing the constitution without a codified constitutional amendment.

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 look outside the Constitution in determining the validity of certain governmental actions, specifically those affecting the fundamental rights of individuals. Like Jefferson Powell's recent scholarship suggesting that those who met in Philadelphia intended their own subjective intent to be irrelevant to later interpretation,' my conclusion makes clear that the framers intended something independent of their own intent to serve as a source of constitutional law.

With the appointment of Justices Gorsuch and Kavanaugh to the Supreme Court, jurists in the mold of Justice Scalia, textualism and originalism are more prominent then ever before. These justices insist that in interpreting the Constitution, they focus on text while other justices neglect the Constitution. In The (Un)Written Constitution, George Thomas reveals that textualists and originalists rely on unwritten understandings that shape their reading of the Constiution's text. Our most pressing debates over how to interpret the Constitution are debates about unwritten ideas, not the text. And these debates have been with us from the creation of the Constitution to the present.

With the appointment of Justices Gorsuch and Kavanaugh to the Supreme Court, jurists in the mould of Justice Scalia, textualism and originalism are more prominent then ever before. These justices insist that in interpreting the Constitution, they focus on text while other justices neglect the Constitution. In 'The (Un)Written Constitution', George Thomas reveals that textualists and originalists rely on unwritten understandings that shape their reading of the Constiution's text.

With the appointment of Justices Gorsuch and Kavanaugh to the Supreme Court, jurists in the mould of Justice Scalia, textualism and originalism are more prominent then ever before. These justices insist that in interpreting the Constitution, they focus on text while other justices neglect the Constitution. In 'The (Un)Written Constitution', George Thomas reveals that textualists and originalists rely on unwritten understandings that shape their reading of the Constiution's text.