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Originalists will of course have no patience for such legal shenanigans. But living constitutionalists are also likely to be frustrated by Amar’s idiosyncratic approach. To understand why, let’s return once more to the meaning of the Commerce Clause.
In 1935 the Supreme Court handed down its eagerly anticipated decision in Schechter Poultry Corp. v. United States. At issue was the constitutionality of the National Industrial Recovery Act (NIRA) of 1933, a centerpiece of the New Deal’s first 100 days hailed by President Franklin Roosevelt as “the most important and far-reaching legislation ever enacted by the American Congress.”
The Supreme Court agreed with FDR about the law’s unprecedented reach, unanimously striking it down for exceeding Congress’ power to regulate interstate commerce. If NIRA were allowed to stand, Chief Justice Charles Evans Hughes wrote for the Court, there would “be virtually no limit to the federal power, and, for all practical purposes, we should have a completely centralized government.” Even progressive Justice Louis Brandeis agreed, telling several White House lawyers, “This is the end of this business of centralization, and I want you to go back and tell the president that we’re not going to let this government centralize everything.”
In response, FDR denounced the Supreme Court for sticking to the Constitution’s original meaning. “The country was in the horse-and-buggy age when that clause was written,” Roosevelt famously sneered at a press conference held after the ruling. His administration favored a more flexible approach, he continued, one that would “view the interstate commerce clause in the light of present-day civilization.”
In other words: living constitutionalism. In the years since, liberal lawyers, law professors, and judges have mostly followed FDR’s lead. So has the Supreme Court, which in 1942 reversed course on the Commerce Clause by holding that the cultivation and consumption of wheat entirely on one man’s farm somehow still counted as “commerce…among the several states.”
Why should today’s living constitutionalists abandon this tried-and-true approach for Amar’s peculiar vision? According to America’s Unwritten Constitution, liberals must first tie the 19th Amendment into knots before they can go about striking a blow against the “horse-and- buggy” Commerce Clause. Why not just “view the interstate commerce clause in the light of present-day civilization,” as FDR did?
Because Amar is a talented writer and a knowledgeable legal historian, even those readers who disagree with his judgments will find something to enjoy in America’s Unwritten Constitution. But as an effort to triangulate between originalism on the one side and living constitutionalism on the other, the book must be judged a failure.