A constitution that puts judge-made law first will be an increasingly unoriginalist constitution as precedent is piled on precedent.
Despite my admiration and enjoyment of America’s Unwritten Constitution, I have some disagreements as well. Professor Amar is absolutely correct to reject a wooden textualism, but one of his interpretive moves strikes at the formality that comes from interpreting the language of the Constitution as fixed when it was enacted. In particular, I worry about the “lived Constitution.” Here Professor Amar discovers a mode of constitutional interpretation which discovers unenumerated rights in the practices and beliefs Americans live by. An example would be the emergence of a right to contraception.
To be sure, the Constitution’s structure permits a lot of room for the development for social norms. Federalism for instance permits a forum of experimentation. New social norms change law through the process of passing ordinary legislation. No state bans contraception now and none now would do so, regardless of whether the Court had declared it a constitutional right.
But I fail to see why norms should become part of the Constitution even if they enjoy substantial support. First, that support does not necessarily represent a consensus about making the norm a constitutional right. It is simply different to accept a norm as a good thing now as opposed to entrenching it for the future in the federal constitution. We may need time for second thoughts or believe that the costs of entrenchment outweigh the benefits given future uncertainty. Second, when a consensus is not crystallized into a single legal form it is as a general matter less definite and harder to apply. Finally, accepting this method of updating the Constitution detracts from the amendment process which is clearly about consensus and permits crystallization.
Professor Amar suggests that an interpretation of the Ninth Amendment may permit this evolving conception of rights but I do not see the Ninth Amendment as a vessel for substantive rights. Instead it is an interpretive rule to prevent the specifications in the Bill of Rights from implying that individuals lack rights against the federal government when the limitations of the enumerated powers already provided a large space for unenumerated rights against that government. It is conceivable that the Privilege or Immunities Clause in the Fourteenth Amendment was open- ended and permitted evolving rights, but I would like to see more evidence on this point than is contained in Professor Amar’s book.
In any event, Professor Amar’s enthusiasm for the “lived Constitution” mode of interpretation owes much to his view that it will strengthen the text “by connecting it to rights claimed and practiced by each generation of Americans.” I think that this claim does not give enough weight to the Article V amendment process. That process is a better way for each generation to entrench rights against further change with the advantages of deliberation and legal formality—a point that Mike Rappaport and I develop in Originalism and the Good Constitution.
In my next post, I will consider whether Professor Amar has given economic rights their due.