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The Constitution, in Text and Spirit

Friday, January 11, 2013

Akhil Reed Amar seeks to establish a new approach to jurisprudence.

Establishing an entirely new approach to constitutional jurisprudence is hard enough, and bridging the gaps between that approach and its rivals is even harder. Yet this is exactly what Yale Law School Professor Akhil Reed Amar seeks to do in America’s Unwritten Constitution: The Precedents and Principles We Live By. While Amar is only partially successful, his efforts spur new and fascinating reflections about our founding document.

A counterpart to America’s Constitution: A Biography, Amar’s acclaimed 2005 opus, the Unwritten Constitution surveys our legal and historical landscape to chart those murky areas where our founding document’s express language gives way to implicit rights, traditional practice, and logical assumptions. Amar’s book aims to supply “the tools and techniques for going beyond the written Constitution while remaining faithful to it.”

Amar’s project is nothing if not ambitious:

Equipped with this comprehensive understanding of the American constitutional system, we can begin to bridge the deep divide in our current constitutional culture. Today, some judges, politicians, pundits, and scholars plant their flag on the high ground of constitutional text and original intent, while others proudly unfurl the banner of a “Living Constitution.” Too often, each side shouts past the other, and both sides overlook various ways in which the text itself, when properly approached, invites recourse to certain nontextual — unwritten — principles and practices. We are all textualists; we are all living constitutionalists.

As probably the most prominent exponent of the “New Textualist” school of legal thought, Amar — along with colleagues Jack Balkin at Yale and Einer Elhauge at Harvard — has written groundbreaking articles, op-eds, and books arguing that legal liberals mustn’t neglect the actual written language of the Constitution and its supporting texts, as their archrivals, the (legally) conservative Originalists, contend they do. New Textualist theory has gained purchase with the Supreme Court’s liberal minority, most prominently in the spate of decisions last June that included the Court’s upholding of Obamacare.

But in America’s Unwritten Constitution, Amar aims to square the circle between textualism and living constitutionalism by exploring how our founding document was enacted; is lived, symbolic, doctrinal, and even feminist; and remains unfinished.

The author is a storyteller par excellence, bringing to life stodgy debates over the hoary legal doctrines promulgated by Blackstone, Coke, and other progenitors of British common law. He would also make a first-rate historian, displaying a discerning, detailed understanding of cause and effect in matters cultural, political, and legal from before our nation’s founding until deep into the 20th century.

No precedent existed for how a president would carry out his duties as chief executive of the nation.

In one telling episode describing the ratification of the Constitution, Amar explores a debate that raged a few years ago about whether the lightning-rod term “the Year of Our Lord” resides in the Constitution itself, and therefore breathes life into traditionalists’ claims that our country’s founding document proves we’re a Judeo-Christian nation at root. After meticulously analyzing the various drafts of the text that circulated during the years of the ratification process — and observing that the flagship copy under lock and key at the National Archives differs from the canonical version actually ratified — Amar rules the “Lord” language out of bounds, but still relevant. “The words ‘in the Year of Our Lord,’” he concludes, “do not merely lie outside of Article VII. They lie outside of the official written Constitution … altogether. Nevertheless, these words are an important part of America’s unwritten Constitution and as such need not be read in a manner that drains them of all religious significance.”

In an especially instructive chapter on George Washington’s special role in establishing the Constitution, Amar draws a helpful distinction between how Americans gathered to “activate” our founding document during the 1787–88 ratification period, and then to “act out” the text beginning with Washington’s election and inauguration, “much as a theatrical troupe might act out a playwright’s written script.” This “acting out” proved every bit as challenging as the “activation,” as no precedent existed for how a president would carry out his duties as chief executive of the nation. Yet we were most fortunate to have at our helm a man of Washington’s caliber and integrity to navigate these treacherous shoals, and indeed, Amar muses, it often seems as if the Constitution were drafted with His Excellency in mind, for without Washington, “it was widely believed that even a perfectly designed constitutional ship of state might founder at the launch.”

Amar’s work is filled with bon mots and wordplay: the parchment version of the Constitution under glass in the National Archives was “gilt by association”; the First Reconstruction Act was “an 1860s re-do of the 1780s ‘We…do’”; “homing in (so to speak) on the word ‘house’”; and the list goes on.

Along the way, Amar offers a thoughtful analysis of basic social and cultural practices, of “how various rights are embodied in citizens’ daily rhythms and embedded in powerful customs.” Here, he examines the oft-overlooked Ninth Amendment, which declares that “the enumeration in the Constitution of certain rights, shall not be construed to deny or disparage others retained by the people.” While couched as a negative protection of existing rights, the Ninth Amendment, Amar posits, “warmly invites certain pro-rights readings based on positive implications.”

Thus, for instance, the Sixth Amendment guarantees a criminal defendant the right “to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.” Nowhere does the amendment specifically empower a defendant to present to the jury physical evidence supporting his case. 

Yet it would be absurd, Amar contends, to deny a defendant such a right, implicit as it is in the warp and woof of the complete corpus of the Constitution, as well as in practice that predated the document’s ratification. Thus, the Ninth Amendment adumbrates and reinforces those rights inherent in free societies but not expressly “enumerat[ed] in the Constitution.”

But Amar’s analysis goes a bit astray when he explores inherent norms that the Supreme Court may, arguably, have pushed too far. Invoking Superman’s pursuit of “truth, justice, and the American way,” Amar turns to the so-called “right of privacy,” which Justice William O. Douglas first detected “between the lines of the Bill of Rights” in the celebrated Griswold v. Connecticut case, which struck down a law criminalizing the use of contraception. Amar faults Douglas for locating this right in the First Amendment’s right to free assembly, a public context irrelevant to the secrecy of the bedroom. 

The author also criticizes Justice John Marshall Harlan II, who purported to discern the right to privacy in the due process clause of the Fourteenth Amendment, a clause, Amar convincingly contends, that pertains to the appropriate procedural methods by which laws are enacted — methods the state of Connecticut unquestionably followed in this case — not their substance. Instead, Harlan developed a new coinage: “substantive due process,” a problematic, even oxymoronic term that would bedevil the legal academy for decades. Among the many slippery questions this concept raises:  When does a right migrate from the procedural to the substantive, or vice versa, such that it would or wouldn’t be included in substantive due process?

Amar, though, seeks a way out of the morass by grounding the Griswold decision in the “privileges and immunities” clause of the Fourteenth Amendment instead, arguing that these can be found “by paying heed to citizens — what they do, what they say, what they believe.” In other words, because citizens have traditionally enjoyed an entitlement to privacy in their bedrooms, that right falls under those privileges and immunities protected by the Constitution.

How widespread amongst Americans must a practice or entitlement be in order to qualify as a privilege or an immunity?

Yet this formulation presents far more challenges than it resolves. How widespread amongst Americans must a practice or entitlement be in order to qualify as a privilege or an immunity? What if there are multiple traditions at odds with each other? How should elected officials, let alone judges, measure the pervasiveness of these practices? And what if such practices conflict with other concerns expressed more directly in the language of the Constitution? While not addressing these challenges directly, Amar at least acknowledges — as he has elsewhere — that Justice Harry Blackmun’s right-to-privacy argument in Roe v. Wade, arguably the best-known Supreme Court case, suffers from deep flaws. (Later in the book, Amar explains why women’s rights, as embodied by the Constitution, provide firmer ground for upholding Roe going forward.)

In other places, Amar’s argument also proves too much. For instance, he points to the First Reconstruction Act, which required the vanquished states of the Confederacy to ratify the Fourteenth Amendment as a precondition for readmission to the Union, as an example of a “new constitutional principle,” namely that “the federal government would properly enjoy sweeping authority to hold state governments to the highest contemporary standards of democratic inclusiveness.” 

But far from changing the fundamental relationship between the federal government and the states, the First Reconstruction Act simply set the terms, on a sui generis and never-to-be-repeated basis, for reentry into the United States for those states that had seceded therefrom. Once readmitted, the former slave states were subject to the same laws, duties, rights, and privileges as all other states. Put differently, the federal government did not compel the existing, free states to ratify the Fourteenth Amendment, nor could it ever have been said to have the power to do so.

On balance, Amar’s constitutional vision seeks to erase the strict lines of demarcation between the judiciary and the legislative branches, between law-reading and lawmaking, and between textualists and living constitutionalists. And while he doesn’t manage, in this book, to definitively draw new lines, he sketches the broad contours of how those lines might one day develop, a “genuine dialogue among judges, legislators, and ordinary citizens.” As such, America’s Unwritten Constitution is a worthy companion to his first volume.

Michael M. Rosen, a contributor to THE AMERICAN, is an attorney and writer in San Diego.

FURTHER READING: Rosen also writes “Will California Become a Right-to-Give State?” “Free Speech for Me, But Not for Thee, PC?” and “The New Textualists’ Finest Hour?” Steven F. Hayward contributes “Robert Bork's Revenge?” John Yoo discusses “20 Years of Justice Thomas.”

Image by Dianna Ingram / Bergman Group

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