America's Unwritten Constitution

I recently finished Akhil Amar’s America’s Unwritten Constitution and strongly recommend it to anyone interested in constitutional law. That is not because I agree with all of it. As I get older, I find the most important aspect of a great book is its capacity to enlarge the ideas I can entertain as interesting and plausible rather than to compel my agreement.

America’s Unwritten Constitution sets forth a variety of ways that an interpreter of the Constitution can look beyond the text’s words to interpret and implement it today. Some are ways that are always compatible with originalism. As Mike Rappaport and I do in our own book, Amar shows that context and the methods of interpretation at the time of its enactment are indispensable to understanding the Constitution. Others are also compatible with originalism if properly done, as when Amar looks to the early practices of the republic to clarify meaning or takes account of precedent.  Other methods,  as I will argue in a follow up post, are less compatible with originalism, but they also describe as matter of fact how the Court has given effect to constitutional law.

The book shows a lifetime of constitutional study on every page. Its tone is a model of what scholarship should be. If Yeats is right that prose is arguing with others and poetry is arguing with oneself much of this is poetry. Different sides of argument are given their due before Amar comes to judgment. And it is wonderfully written. I rarely envy legal prose, but so much of it is clever. For instance, he refers to a never delivered judgment  of Roger Tawney barring conscription as the “draft draft” opinion.

On substance, for all constitutional theorists, I see this book as a great and more comprehensive successor to Philip Bobbitt’s work on constitutional modalities—methods by which the Court has as a matter of fact interpreted the Constitution. I also consider some of the criticism that it has received– that Amar is proposing eleven different constitutions and thereby simply enlarging judicial discretion–somewhat unfair. In Amar’s view, some modes of interpretation are appropriate at some times and others at other times and he provides at least implicit rules for their use. Whatever our normative disagreements about some of these modes of interpretation (and I have some), his expanded list captures accurately the many modes of analysis that propel constitutional law as a positive matter. That is in itself a very substantial achievement.

For an originalist, I think the most important message is not to throw out all Warren Court decisions from general disgust with their craft and the failure to root those decisions in the Constitution. There may be other ways to defend these decisions as law, often compelling ways, as Mike Rappaport shows in his post today. But there is also a message to the celebrants of the Warren Court as well: just because they made a decision does not mean it is sancrosanct. Amar’s interpretations of the constitutional clauses on criminal procedure provide an important corrective to the many mistakes of the Warren Court in this area, most particularly its enforcement of the exclusionary rule.