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Constitutional Law

Not Unwritten, After All?

The connection between constitutional text and constitutional norms

If you want to understand American constitutional law, you have to read the U.S. Constitution. That seems obvious. But you can’t just read the U.S. Constitution, because there is more to constitutional law than that. The very first page of Akhil Reed Amar’s impressive book, America’s Unwritten Constitution, makes this point well. Nothing in the text of the Constitution explicitly forbids racial segregation. The text does not explicitly say that the Bill of Rights applies to the states. “One person, one vote”; “the rule of law”; “checks and balances”; “separation of powers” – none of these phrases are in the text of the Constitution (p. ix). There are many more examples. These add up to an “unwritten Constitution,” Professor Amar says, that, together with the document, make up “America’s working constitutional system” (p. ix). Of course the elements of the unwritten Constitution are written down in various places, but not, at least not explicitly, in the famous document.

America’s Unwritten Constitution asks the important questions: If there is an unwritten Constitution, where do its “provisions” come from? How do we figure out what it requires, with enough precision to resolve specific legal issues? What, exactly, is the relationship between the written and unwritten Constitutions (pp. x—xi)? The book does not answer these questions systematically; what Amar said in an earlier article, that “[t]hese questions are best answered by example rather than by a priori reasoning,” captures his method here as well. The book is, in a sense, a demonstration, not an explanation, of how the unwritten Constitution works. It contains twelve chapters, each with a subtitle suggesting a different unwritten Constitution: the “Implicit Constitution,” the “Enacted Constitution,” the “Lived Constitution,” the “Doctrinal Constitution,” the “Institutional Constitution,” and others. In each chapter, Amar briefly describes a way of ascertaining the contents of the unwritten Constitution; then, in the bulk of the chapter, he makes detailed arguments for specific legal conclusions on a wide range of subjects: for example, why freedom of speech, or women’s equality, or certain executive branch powers are properly seen as part of the Constitution.

Cover for America's Unwritten Constitution

America's Unwritten Constitution

By Akhil Reed Amar. New York, N.Y.: Basic Books. 2012. Pp. xvi, 615. $29.99.

Amar says that what unites each chapter is the “methodological tool” (p. xv) he uses to “locate and bring into sharp focus the unwritten substantive do’s and don’ts” (p. xiv). But it is clear that the author’s heart is much less in the brief and abstract justifications for using the various “methodological tool[s]” than in the specific arguments that apply those tools. Those arguments are lively, ingenious, and erudite.

Several things about this book are particularly striking. First, despite the book’s title, the star of the show is, in fact, the written Constitution. Many principles that one might think are unwritten turn out – when Amar is done with them – to be in the written Constitution itself, once you read the written Constitution the right way. That is not true of each of his unwritten Constitutions, but I think it can fairly be described as one of the main themes of the book – not surprisingly, given Amar’s well-known earlier work.

Second – again despite the book’s title, which suggests a description of existing constitutional norms – Amar often defends some surprising and unconventional views about constitutional law. The Guarantee Clause of Article IV, the Ninth Amendment, the Citizenship and Privileges or Immunities Clauses of the Fourteenth Amendment, Section 2 of the Fourteenth Amendment, the Nineteenth Amendment, the Twenty-Fourth Amendment, and, glancingly at least, the Titles of Nobility and Bill of Attainder Clauses of Article I, as well as some other provisions – all are interpreted in ways that would surprise someone who, for example, learned constitutional law from Supreme Court opinions. Generally – and again despite the title of the book – Amar’s unconventional readings are designed to show that established principles of constitutional law that might seem to be “unwritten” are in fact securely connected to the written Constitution.

Third, while the book is filled with surprising interpretations and arguments, in the end it does not call for a large-scale reformation of constitutional law. Amar disagrees with his share of Supreme Court decisions: the Fourth Amendment exclusionary rule gets particularly rough treatment, and it is not alone. But his views about how cases should come out, unlike many of his challenging and iconoclastic arguments, are, for the most part, comfortably within conventional boundaries.

The most striking thing about the book, however, is that it is, in many ways, a tour de force. It is extraordinary both in its scope and in the erudition it displays: it is impossible to do justice, in a review, to the learning reflected in its pages. A book that is so dense in historical detail and textual argument could easily become tedious, but this book does not; every chapter is easy to read but packed with substance. The book can be a little oracular at times, and a little preachy; and I have some qualms both about the big picture it paints and about some of the specific arguments it makes. But this is, without question, a remarkable work of scholarship.

In Part I of this review, I will describe some instances in which, I think, Amar overemphasizes the role of the written Constitution in determining the shape of American constitutional law – and correspondingly understates the importance of the extratextual influences on American constitutional law that the title suggests are the subject of the book. In Part II, I will discuss the relationship between Amar’s overemphasis on the document (if that is a fair characterization) and his unconventional analysis of several issues, and I will venture some thoughts about both the foundations and the consequences of the book’s approach.