Beyond the Limits of the Constitution

A leading liberal law professor abandons the Constitution in the name of understanding it.

America's Unwritten Constitution: The Precedents and Principles We Live By, by Akhil Reed Amar, Basic Books, 640 pages, $29.99

America's argument over the meaning of its Constitution started before the document was even ratified. Between October 1787 and May 1788, Alexander Hamilton, James Madison, and John Jay released a series of 85 essays now known collectively as The Federalist Papers. Published anonymously in newspapers and pamphlets under the pseudonym Publius, these pieces represent one of the earliest sustained efforts to explain the United States Constitution, which was then still being considered by state conventions. Although the governing blueprint was soon approved, the battle over its meaning rages on.

Today that long-running debate is largely organized around two competing ideas. On one side is a school of thought known as living constitutionalism, which holds that the document's meaning must evolve to meet modern needs. Don't let the dead hand of the past strangle the present, proponents of this view say. On the other side is the doctrine known as originalism, which maintains that the Constitution should be interpreted according to its meaning at the time it was adopted. If you want the text to evolve, originalists will tell you, there is a formal amendment process spelled out in Article V.

In his strange and fascinating new book America's Unwritten Constitution, Yale law professor Akhil Reed Amar offers something of a third way, a liberal twist on originalism that draws heavily from both approaches. "Too often, each side shouts past the other," Amar writes, "and both sides overlook various ways in which the text itself, when properly approached, invites recourse to certain nontexual—unwritten—principles and practices." Despite his best efforts, Amar is unlikely to make peace between the two camps.

Framed as a sequel of sorts to his acclaimed 2006 book America's Constitution: A Biography, Amar's latest effort begins with the counterintuitive premise that to fully grasp the text of the Constitution you sometimes have to go beyond it. Amar dubs this outer realm "the unwritten Constitution," which, "at a minimum, encompasses various principles implicit in the written document as a whole and/or present in the historical background, forming part of the context against which we must construe the entire text."

This claim is not necessarily as controversial as it sounds. Staunch originalists such as Supreme Court Justice Clarence Thomas routinely draw from relevant historical sources to help establish the original meaning of constitutional provisions. In his 2010 concurrence in McDonald v. Chicago, for example, Thomas cited the writings of figures ranging from the abolitionist leader Frederick Douglass to the famed English jurist William Blackstone to support his argument that state and local governments must respect the right to keep and bear arms.

Similarly, as Amar notes, The Federalist Papers have been cited in more than 300 Supreme Court rulings and in more than 6,000 law review articles, while "various Federalist essays nowadays form part of the standard curriculum of many if not most high-school and college civics courses." The extra-constitutional writings of Publius have thus "earned a seat of special honor as a privileged guide to constitutional interpretation."

The Constitution itself refers to unwritten components. The Ninth Amendment, for example, declares, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." James Madison may not have spelled out those other rights when he drafted the amendment, but they still merit legal respect.

That much is mostly uncontroversial. The rest of Amar's book tells a much less plausible story. It is organized into 12 chapters, each of which makes a case for a different brand of unwritten constitutionalism, ranging from "America's Lived Constitution" to "America's 'Warrented' Constitution" (referring to the decisions of the Supreme Court under Chief Justice Earl Warren) to "America's Unfinished Constitution." The discussion frequently strays so far from the text that the Constitution itself begins to feel like an afterthought.

This tendency is especially troubling because Amar initially seems alert to such interpretive dangers. "The unwritten Constitution should never contradict the plain meaning and central purpose…of an express and basic element of the written Constitution," he declares. "Those who venture beyond the written Constitution must understand not only where to start, but also when to stop, and why." 

This is excellent advice. Unfortunately, Amar is not always scrupulous about following it. Consider his take on the 19th Amendment, which made it illegal for the government to deny citizens the right to vote based on sex. Or at least that's what the text says. Under Amar's creative reading, the amendment actually accomplished something far more transformative, effectively overriding all previous laws, legal precedents, and even explicit constitutional provisions that run counter to "women's rights," a term he never fully defines. "Congress should enjoy broad power to protect women's rights for the simple reason that the unwritten Constitution is a Constitution of American popular sovereignty," he argues, "and popular sovereignty is perverted when more democratic, post-woman suffrage enactments championing women's rights are trumped by less democratic, pre-woman suffrage legal texts."

As an example, Amar points to the Supreme Court's 2000 decision in U.S. v. Morrison. At issue was a provision of the Violence Against Women Act of 1994 that created a federal cause of action for gender-motivated crimes. According to Congress, because violence against women, taken in the aggregate, has a negative impact on interstate commerce, the statute fell squarely under Congress' authority "to regulate commerce…among the several states." The Supreme Court disagreed, ruling that the Commerce Clause was not broad enough to reach noneconomic intrastate activity. As the Court put it, "The Constitution requires a distinction between what is truly national and what is truly local."

Amar finds this conclusion preposterous, denouncing the Morrison majority for its "stingy interpretation" (he deploys the epithet stingy five times in five pages) and for privileging "the old Constitution" over a modern law. "If Congress tomorrow plausibly thinks that a women's-rights law might promote women's full political equality," he declares, that "should be good enough."

Should it really? Remember Amar's own ground rules: "The unwritten Constitution should never contradict the plain meaning and central purpose…of an express and basic element of the written Constitution." Yet Amar's preferred outcome in Morrison would contradict the plain meaning of the written Commerce Clause, which, as Alexander Hamilton explained in Federalist 17, did not extend congressional authority to cover "the administration of private justice between citizens of the same State…and of other concerns of a similar nature, all those things, in short, which are proper to be provided for by local legislation."

Amar's re-imagining of the 19th Amendment would also contradict another "basic element of the written Constitution," the doctrine of enumerated powers, which holds that each branch of government may exercise only those powers granted to it by the Constitution. To say that it's "good enough" for Congress to assert a women's-rights rationale in support of a debatable piece of legislation is to grant Congress a blank check no longer subject to judicial review. So much for knowing "when to stop, and why."

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.