Beyond the Limits of the Constitution: A Leading Liberal Law Professor Abandons the Constitution in the Name of Understanding It
Root, Damon, Reason
America's Unwritten Constitution: The Precedents and Principles We Live By, by Akhil Reed Amar, Basic Books, 640 pages, $29.99
AMERICA'S ARGUMENT over the meaning of its Constitution started before the document was even ratified. Between October 1787 and May 1788, Alexander Hamilton, James Madison, and John Jay released a series of 85 essays now known collectively as The Federalist Papers. Published anonymously in newspapers and pamphlets under the pseudonym Publius, these pieces represent one of the earliest sustained efforts to explain the United States Constitution, which was then still being considered by state conventions. Although the governing blueprint was soon approved, the battle over its meaning rages on.
Today that long-running debate is largely organized around two competing ideas. On one side is a school of thought known as living constitutionalism, which holds that the document's meaning must evolve to meet modern needs. Don't let the dead hand of the past strangle the present, proponents of this view say. On the other side is the doctrine known as originalism, which maintains that the Constitution should be interpreted according to its meaning at the time it was adopted. If you want the text to evolve, originalists will tell you, there is a formal amendment process spelled out in Article v.
In his strange and fascinating new book America's Unwritten Constitution, Yale law professor Akhil Reed Amar offers something of a third way, a liberal twist on originalism that draws heavily from both approaches. "Too often, each side shouts past the other" Amar writes, "and both sides overlook various ways in which the text itself, when properly approached, invites recourse to certain nontexual--unwritten--principles and practices."
Despite his best efforts, Amar is unlikely to make peace between the two camps.
Framed as a sequel of sorts to his acclaimed 2006 book America's Constitution: A Biography, Amar's latest effort begins with the counterintuitive premise that to fully grasp the text of the Constitution you sometimes have to go beyond it. Amar dubs this outer realm "the unwritten Constitution," which," at a minimum, encompasses various principles implicit in the written document as a whole and/or present in the historical background, forming part of the context against which we must construe the entire text."
This claim is not necessarily as controversial as it sounds. Staunch originalists such as Supreme Court Justice clarence Thomas routinely draw from relevant historical sources to help establish the original meaning of constitutional provisions. In his 20101 concurrence in McDonald v. Chicago, for example, Thomas cited the writings of figures ranging from the abolitionist leader Frederick Douglass to the famed English jurist William Blackstone to support his argument that state and local governments must respect the right to keep and bear arms.
Similarly, as Amar notes, The Federalist Papers have been cited in more than 300 Supreme Court rulings and in more than 6,000 law review articles, while "various Federalist essays nowadays form part of the standard curriculum of many if not most high-school and college civics courses." The extra-constitutional writings of Publius have thus "earned a seat of special honor as a privileged guide to constitutional interpretation."
The Constitution itself refers to unwritten components. The Ninth Amendment, for example, declares, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." James Madison may not have spelled out those other rights when he drafted the amendment, but they still merit legal respect.
That much is mostly uncontroversial.
The rest of Amar's book tells a much less plausible story. It is organized into 12 chapters, each of which makes a case for a different brand of unwritten constitutionalism, ranging from "America's Lived Constitution" to "America's 'Warrented' Constitution" (referring to the decisions of the Supreme Court under Chief Justice Earl Warren) to "America's Unfinished Constitution. …