Posted: January 14, 2013
Akhil Amar's new book has a great deal of charm. The author, a professor at Yale Law School, displays admirable mastery of constitutional history, going far beyond case law. He offers his various arguments, not as hectoring moralism or formulaic theorizing, but in a soothing, engaging manner, like a cagey lawyer intent on getting jurors or appellate judges to sympathize with his conclusions rather than endorse all the precise elements of his doctrines.
The book ambles from topic to topic and doesn't present itself as a polemic against any alternative approach to constitutional interpretation. But it is, in effect, an argument against the background assumptions of "originalist" jurisprudence now embraced by many conservatives.
The very title—America's Unwritten Constitution—may provoke some conservatives. Early on, Amar tries to reassure readers that his unwritten Constitution can't supplant the written text. He concedes that "an assortment of ‘constitutional rules' conjured up out of thin air...would do violence to the fundamental choice of the American people over the centuries to ordain and amend a single written text that sets forth the nation's supreme law." But he insists that if "read in a literal or flatfooted way," particular constitutional provisions "would seem indeterminate or even perverse when measured against the larger purposes of the document itself." So, he concludes, "the written text presupposes and invites certain forms of interpretation that go beyond clause-bound literalism."
In support of this last claim, Amar offers a footnote reference—without any word of caution or qualification of his own—to two recent books by natural law theorist Hadley Arkes. In this, his own book, however, he does not try to identify an unvarying set of first principles to resolve constitutional ambiguities. His method is rather to view the Constitution in a "holistic" way, seeking interpretations that reconcile various provisions into a "coherent" whole.
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The "terseness" of the written text does often seem to demand such an effort. To cite an example that Amar does not mention, the Constitution stipulates in Article I, section 9, that "habeas corpus shall not be suspended, unless when in cases of war or rebellion or invasion the public safety may require it." The qualification implies that habeas corpus can be suspended in the proper circumstances, but the enumeration of congressional powers in Article I, section 8, does not actually mention that power. Chief Justice Roger Taney in Ex Parte Merryman (1861) insisted the power was implied—but exclusively assigned to Congress (given the presence of the restriction in Article I, dealing mostly with powers of Congress). Abraham Lincoln's attorney general, Edward Bates, argued the president had the power to suspend habeas corpus on his own authority, given his unique oath to "preserve, protect and defend the Constitution," while members of Congress, like all other public officials, are only required to take an oath to "support the Constitution."
And what was the constitutional ground for all the other war measures, by Congress and the president, to prevent Southern states from seceding? Lincoln insisted they were all justified by the vague wording of Article IV, section 4: "The United States shall guarantee to every state in this union a republican form of government." Nothing could be guaranteed, Lincoln argued, if states could simply detach themselves from the Union, whenever some cabal of leaders sought to maintain an un-republican government. And how, Lincoln asked, could the Constitution secure "a more perfect Union" (as the Preamble promises) if states were free to secede at will from a union already described as "perpetual" in the Articles of Confederation?
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Amar's distinctive twist is to emphasize amendments to the Constitution and the "gravitational force" they exert on earlier provisions. Some applications of this technique seem quite compelling. There might be some doubt about whether guarantees of the "right to vote" in the 15th Amendment (against race discrimination) and the 19th Amendment (against sex discrimination) apply to primary contests for party nominations, as well as actual elections for office. But the 24th Amendment (against poll taxes) specifies that it applies to "any primary or other election," which supports (Amar says) the inference that earlier amendments should henceforth be given the same reach.
Amar argues that a somewhat similar retroactive interpretation justified the Warren Court's application of the Bill of Rights to the states, given that the 14th Amendment already does say, in very general terms, that states must not deprive citizens of "the privileges or immunities of citizens of the United States." He reads the text of the 14th Amendment as a reinforcement of the republican guarantee clause, after the secessionist states had attempted their rebellion against a duly elected government. There is much to commend the general theory—though the more activist interpretations of particular amendments seem to undermine the general notion that each state should retain its own republican form rather than being ruled by five remote judges with life tenure.
Other applications are still more tenuous. Amar claims that the 25th Amendment implicitly endorses independent regulatory commissions—that is, establishing some administrative officials beyond the reach of presidential removal power—because it refers to the possibility of removing a disabled president on the petition of a "majority of the principal officers of the executive departments." He gives no reason to think this language differs in any meaningful way from that in the original Constitution, authorizing the president to "require the opinion in writing of the principal officer in each of the executive departments."
Amar finds "gravitational force" in the 16th Amendment, which simply authorizes Congress "to lay and collect taxes on incomes." It was added to the Constitution in 1913, less than two decades after the Supreme Court had held a direct federal tax on incomes unconstitutional. He argues that since the income tax was understood to have redistributive potential, the Court should have recognized the amendment as justification for wages and hours regulation and a range of other regulatory measures which courts continued to resist (until the 1930s) as infringements of liberty. It is not exactly a knock-down argument.
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But it gets worse. Amar argues that the 19th Amendment—prohibiting denial of voting rights "on the basis of sex"—implicitly called into question the legitimacy of previous legislation, enacted by legislatures derived from electorates that excluded women. On that basis, he proceeds to argue that Roe v. Wade (1973) may have been rightly decided, since restrictions on abortion were initially enacted by legislatures chosen by all-male electorates.
Among other things, this approach illustrates the difficulty of viewing the text in isolation from the known expectations of those who proposed and ratified it. It is most unlikely that the 19th Amendment would have been ratified if it were clearly identified as excluding all legal constraints on abortion, since there was general consensus at the time that abortion should be forbidden. If courts are free to attribute new meanings to amendments, far beyond what sponsors had embraced, then adding amendments is a much more dangerous venture than it might seem.
The feminist Equal Rights Amendment, proposed by Congress in 1972, ultimately failed to gain approval from the required three-quarters of the states. That was partly because, given the scale of judicial activism in that era, opponents found it easy to depict the amendment as an open license for activist courts to launch even more questionable or willful policy ventures in the name of "equality." It weakens Amar's argument that he fails to address the implications of this episode (except to claim that the 14th Amendment already justified courts in extending their scrutiny to sex discrimination in the 1970s).
Amar defends Griswold v. Connecticut (1965; overturning a law against distribution of contraceptives) and Lawrence v. Texas (2003; overturning a criminal prohibition on sodomy) as reasonable applications of the 9th Amendment, when read in light of the 14th Amendment guarantee of "privileges or immunities of citizens." Amar sees the 9th Amendment as protecting "the people's right to discover and embrace new rights and to have these new rights respected by government, so long as the people themselves do indeed claim and celebrate these new rights in their words and/or actions." He then argues that the failure to enforce these laws—and the widespread defiance of them in practice—shows "the people" had embraced new rights as part of "the sexual revolution" and courts could properly ratify this popular understanding.
Amar concedes that courts can misinterpret the Constitution, "as a matter of text and original intent" but even a case that was "wrong when decided" may "become right thanks to an intervening change of fact—broad and deep popular endorsement—that the Constitution's own text, via the 9th and 14th Amendments, endows with special significance." But popular ratification only works, on his telling, for "rights-expanding" rules; a case that "construes a textual constitutional right too narrowly" can't claim support from "the text of the Ninth and Fourteenth Amendments so as to specially immunize it from subsequent reversal."
So when liberal justices fail to rally a majority for their favored claims today, they can still hope to deliver them down the road. At the end of the book, Amar deplores the idea of a constitutional amendment "to ban gay marriages" since it would "constrict the scope of the grand idea that government should not demean a person because of his or her birth status—because she was born out of wedlock...or he was born gay." Barring such an amendment, it is easy to see the path to a 5-4 ruling requiring recognition of same-sex marriage in all 50 states based on what Amar calls "our national narrative" of successive amendments and court rulings that "have expanded freedom and egalitarianism."
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It is not surprising, then, that a whole generation of conservative scholars has sought to resist such "national narratives," empowering courts to impose anything that law professors or liberal journalists now see as "expanding freedom and egalitarianism." Amar, himself, tries harder than some to give constitutional grounds for his preferred outcomes but he doesn't provide much material to resist those with larger ambitions. He gives no attention to the ongoing rancor of the abortion debate, which has become entangled in every second Supreme Court nomination and has cast its shadow on almost every presidential election since the Court's ruling in Roe v. Wade. Scholars who weigh the constitutional costs of such ongoing polarization are bound to be much more skeptical of court-inspired ventures in "expanding freedom and egalitarianism." You can see why so many conservatives demand that courts show that their rulings are grounded in clear evidence about the originally intended meaning of particular clauses in the written Constitution—and refuse to be drawn along by clever lawyers, offering beguiling claims from the "unwritten Constitution."
Though he does not call his constitutional interpretation "progressive," Amar does seem to place his trust in the idea of "progress." In his account, the Constitution "has traced a clear and remarkable trajectory" from "liberty-loving supporters of the Bill of Rights, Reconstruction Republicans [who sponsored the post-Civil War amendments], early twentieth-century Progressives, and late twentieth-century crusaders for civil rights." Who wouldn't want to go with the flow if the flow is always toward expanding freedom and equality?
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It is much harder to sustain such complacency once you notice that all good things don't always fit in the same package. New Deal-style regulation might have fostered a certain kind of "egalitarianism" but making it harder to start new businesses is not well described as "expanding freedom." Perhaps an economy where most economic ventures require licensing approval is one where licenses—and resulting opportunities—will generally go to those with good political connections, which may work against "egalitarianism," after all. Does allowing unlimited access to abortion, even for purposes of sex selection of offspring, really encourage respect for women or for those most vulnerable? Is it clear, then, that it contributes to "egalitarian" protection? Do we foster "greater freedom and egalitarianism" by constraining government support for religious schools in order to encourage a common public forum—or by allowing government subsidies in order to foster greater choice?
The more you think about trade-offs, the less likely it is that courts will always or generally make the right call. Certainly it is harder to believe that there is a clear distinction between "rights-expanding" and rights-narrowing rulings. So, why not insist on a minimalist approach to the Constitution, admonishing courts to steer clear of everything except rulings based on very clear historical evidence of original understanding in relation to particular clauses?
One reason might be that our greatest statesmen and many of our greatest judges—including Chief Justice John Marshall (as Amar rightly claims in this book)—did not interpret the Constitution in such a narrow way. I think there are several other reasons to welcome talk of an unwritten Constitution, even today.
One is that it's appropriate to acknowledge a distinction between the actual text of the Constitution and the interpretations we place on it. To his credit, Amar acknowledges that courts do make mistakes and ought to reconsider them when they do. He derides the Court's sanctimony about precedent in the 1992 Planned Parenthood v. Casey ruling—which defended Roe v. Wade as a precedent too established to question. That approach to precedent was itself unprecedented, Amar observes, less grounded in actual practice than in a judicial penchant for "unchecked institutional self-aggrandizement."
He also includes within the unwritten Constitution a range of precedents and practices in the executive branch and in Congress, which have developed without guidance from courts but have attained over time a considerable degree of authority—though they might still be disputed. To acknowledge that some "applications" of the Constitution are disputable is to leave room to contest wrongful rulings of the past and hope for better in the future—without having to claim that alternative interpretations have the same authority as the words of the Constitution (or those provisions in the written text whose meaning is very clear).
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In the second place, when it comes to unwritten or implicit rules, there are basic constitutional principles which conservatives should want to see more fully recognized and more reliably protected. Amar's book says almost nothing about federalism. The Rehnquist and Roberts Courts, however, have shown renewed interest in it—and with good reason. It is crucial to the Constitution's structure and it safeguards basic American principles, such as personal choice and tolerance of diversity.
Similarly, Amar says little about property rights, apart from insisting that "privacy" is a more appealing and generally supported constitutional claim. Whatever you think about a right to privacy, it doesn't substitute for property guarantees unless you take for granted that government can be trusted to manage, in honest and effective ways, the use and allocation of land and capital across our entire economy. Most Americans still have a lot of doubts about that.
Finally, there is something self-defeating about a conservative constitutionalism that leaves all the structural inferences and extrapolations from core principles—all the "reading between the lines," as Amar says—to liberal advocates, and simply grumbles about the need for precise documentary warrants from the framers. Once you acknowledge that the Constitution is not simply what courts say it is, you must be able to press arguments and perspectives that compete for public attention and respect. Denying that the Constitution actually has much to say is no way to encourage attention to, and respect for, your constitutional arguments. If the Left alone can appeal to the spirit of the Constitution, the Right will be left with no spirit and a set of constitutional interpretations with no capacity to inspire.