What Do We Talk about When We Talk about the Constitution?

Article excerpt

AMERICA'S UNWRITTEN CONSTITUTION: THE PRECEDENTS AND PRINCIPLES WE LIVE BY. By Akhil Reed Amar. New York, New York: Basic Books, 2012. 615 pages. $29.99.

FRAMED: AMERICA'S 51 CONSTITUTIONS AND THE CRISIS OF GOVERNANCE. By Sanford Levinson. New York, New York: Oxford University Press, 2012. 448 pages. $29.95.

I. Dear Akhil,

It is certainly not surprising that America's Unwritten Constitution is remarkably stimulating, informative, and challenging. You are surely correct that one cannot possibly understand the American constitutional system simply by reading the text of the Constitution (or, for that matter, reading decisions of the judiciary ostensibly "interpreting" the text). Instead, one must not only look at long-established American practices but also at social movements and transcendent moments in American history-the Gettysburg Address and Martin Luther King's "Dream" speech are two that you emphasize1-that have provided the rationales for how we understand those practices (and, on occasion, become willing to transform them). Your Constitution is necessarily a "living Constitution," for the American people, as active agents of their own constitutional destinies, are constantly debating one another about what constitutes its deep meanings; they constantly create new movements, which in turn generate new political leaders committed to particular understandings. This is one way of understanding not only the civil rights movement that is so important to both of us, but also the Tea Party, which cannot be understood without paying careful attention to its narratives of the Constitution and calls both for fidelity to its ostensible norms and for amendments, such as repeal of the Seventeenth Amendment,2 that would return the Constitution to its intended-and they argue better- embrace of a far stronger form of federalism than we in fact have today.

It is also not surprising that we continue to have some quite fundamental disagreements, whatever our personal closeness. Each of us recognizes in his respective acknowledgments the importance of our relationship over what is now more than a quarter century,3 which includes for the last decade our service as co-editors of a casebook in constitutional law, Processes of Constitutional Decisionmaking.4 But that does not mean, of course, that we have become clones of one another. We met initially when you came to Austin for a symposium on Philip Bobbitt's then recently published Constitutional Fate,5 and we bonded during the course of what turned out to be (at least) a two-hour visit to the monument to Confederate war dead in front of the Texas State Capitol. As noted in our casebook, that monument presents what might be described as the "standard" Southern view of the War:

DIED FOR STATE RIGHTS GUARANTEED UNDER THE CONSTITUTION.

THE PEOPLE OF THE SOUTH, ANIMATED BY THE SPIRIT OF 1776, TO PRESERVE THEIR RIGHTS, WITHDREW FROM THE FEDERAL COMPACT IN 1861. THE NORTH RESORTED TO COERCION. THE SOUTH, AGAINST OVERWHELMING NUMBERS AND RESOURCES, FOUGHT UNTIL EXHAUSTED.6

We debated at length whether this is a "possible" interpretation of the War in relation to the Constitution, which is a very different question from whether it is the "best" interpretation. Your view, I think it is safe to say, is that this does not rise to the level of a "possible" interpretation-that it would deserve an "F" if submitted on a final examination. My view was that it is, for better or worse, a possible view, because the 1787 Constitution, correctly interpreted, is ambiguous (or, in the language of the 1980s, when we first met, "indeterminate"). In the interim, neither of us has changed our fundamental view.

Thus I was startled (though I should not have been surprised) to see your declaration that "the original Constitution emphatically denied state authority to unilaterally secede."7 As many times as I have read the Constitution, I quite literally don't see this "emphatic[] deni[al]. …

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