Monday, September 24, 2012

Unwritten Constitution Day

Arriving on my desk last week -- on Constitution Day (Sept. 17) no less -- was the latest book by Yale law professor Akhil Reed Amar, America's Unwritten Constitution: The Precedents and Principles We Live By. A sequel of sorts to the award-winning America's Constitution: A Biography (2005), Amar's new book examines the texts, traditions, and precedents that guide (and should guide, in his view) those who interpret the written document itself. Amar contends that a written constitution simply cannot include all the understandings that emerge over the course of centuries, understandings that undergird the words of the text, that help give meaning to that text. In his view, the written and unwritten constitutions work together, forming a single system that permits judges, lawyers, and citizens to make sense of the nature of our polity and the rules and principles that lie at its foundation. As Amar puts it,
The terse text is inextricably intertwined with the implicit principles, the ordaining deeds, the lived customs, the landmark cases, the unifying symbols, the legitimating democratic theories, the institutional settlements, the framework statutes, the two-party ground rules, the appeals to conscience, the state-constitutional counterparts, and the unfinished agenda items that form much of America's unwritten Constitution. 
Amar claims to go "beneath, behind, and beyond the written Constitution" while at the same time remaining connected to it. He says he wants to appeal both to originalists and to those who believe in a living constitution. But while the latter may find much that is congenial in Amar's interpretations, originalists will be driven wild by his approach, which necessarily entails going outside the four corners of the document and refusing to be bound by any sort of "original meaning" of specific words and phrases. What Antonin Scalia calls "textualism" is definitely not for Amar, who insists that the meaning of the Constitution lies as much outside the words of the text themselves as within. Nevertheless, thoughtful originalists and conservatives will find the book provocative and, one hopes, will wish to engage its arguments. To lend credence to this aim, the publishers offer positive comments by Ken Starr and Federalist Society co-founder Steven Calabresi, both of whom find Amar's work to be "fine book" but speak otherwise in vague generalities (calling it "thoughtful," "provocative," even a "classic" without exactly saying why).

What Amar attempts to do -- with some success it seems to me -- is to show, that there are principles underlying the words of the text that help us find the meaning of those words. He aims to stay true to the written Constitution even when going outside of it, and he lays out the appropriate techniques to do this. But go beyond the written text he certainly does, pulling into his analysis a wide range of materials, from Supreme Court decisions to the Gettysburg Address, from the pre-Constitution Northwest Ordinance to Dr. Martin Luther King Jr.'s "I Have a Dream" speech.

The argument that there are fundamental principles that allow us to determine the meaning of constitutional text even when confronted with circumstances never imagined by the drafters of that text is not a new one, of course. The best case for that position has been made by Ronald Dworkin in a series of books -- especially, Taking Rights Seriously, A Matter of PrincipleLaw's Empire, Freedom's Law, and Justice in Robes -- and it is mildly disturbing that Amar makes no reference to Dworkin's oeuvre. Dworkin's philosophically sophisticated argument for a principled reading of a constitution -- especially our Constitution -- sets the bar quite high (the height of that bar can be seen in Dworkin's excellent recent book, Justice for Hedgehogs). But Amar may be the more sophisticated historian (though I suspect "real" historians may find that he uses history like a lawyer building a case, rather than treating it with the semi-reverence historians prefer), and he provides those of us who reject the simplistic assertions of originalists and textualists with a wealth of information that sheds considerable light on the ideas that lend meaning to the words used in the Constitution.

I have written before that "originalism" is really quite a silly approach to constitutional interpretation, one that, despite the recent efforts of Justice Scalia and co-author Bryan Garner to give it some pedigree and despite its popularity with a certain breed of politician, cannot hold up to critical analysis. (That case, I realize, I have not made. So many projects, so little time.) Amar is kind enough to give that approach some respect, while rapidly carrying the idea that the meaning of the Constitution must rest in some way on the words in the text well beyond the place where Scalia would ever go even in his boldest moments. Scalia is bold, to be sure, but it is a blustery boldness, a kind of hard-headed resistance to any point of view that is not consistent with his own, rather archaic, one. And, as his recent battle with Richard Posner indicates, Scalia has no patience with criticism. He is a true believer, set in his ways and beliefs, convinced that he is right. In itself, such a mindset is not necessarily bad, though we would hope that thoughtful citizens would always be open to the challenge of reason. But Scalia simply refuses to consider strands of reasoning that cut against his settled prejudices; he chooses instead to shower those who reason in ways he cannot accept and those who reach conclusions that are not his own with sarcasm in lieu of reasoned argument (simply read any of his recent Supreme Court dissents to see examples of this proclivity). Casting his approach as an attack on the notion of a "living Constitution" -- an attack that generally proceeds by setting up a straw man and repeatedly setting it on fire -- Scalia has made himself an advocate of a dead Constitution, a document fossilized more than 200 years ago. Amar, like so many of us, finds that style of "thinking" bankrupt and, possibly, dangerous to the future of constitutionalism.

I have written elsewhere that constitutions
Constitutions seek to frame a political world that will overcome conflict, persist through change, and secure its blessings to posterity. Constitutions are designed to endure despite the challenges posed by times of stress. Most importantly, constitutions are conceived as orders imposed upon chaos, capable of ending revolution and disorder and preventing their recurrence.
What this means is that those interpreting a constitution must keep in mind the point of having a constitution. And they must remain firmly rooted in the text of the document, in the tissue of words the constitution projects into the world.
Constitutional words . . . both provide a solid, seemingly changeless touchstone for the development of the polity and a medium through which the constitution, the principles on which it is founded, and the goals it is intended to serve, may be communicated, debated, interpreted, re-interpreted, re-visioned. Because they are structures of words, constitutions are both changeless (though they may be amendable) and developing. Constitutions are not once-for-all, though they are written precisely to limit change by institutionalizing it. Words in a living language have the fascinating quality of never quite coming to rest in terms of their meanings and implications; they are, in terms employed by H.L.A. Hart, “open textured.” Languages grow and shift as they encounter an ever-changing world. Consequently, constitutions—constructions of words cast into the world—develop over time, very much like the constitution of a human person, never totally, but nevertheless steadily. They progress from within but are designed to stop fundamental transformation. Constitution-makers seek to erect structures that resist fundamental change but allow for development, structures that flex but do not buckle under pressure.
In other words, locking constitutional meanings in a particular moment in the past undermines the very point of a constitution, for it closes down the development that lies at the heart of the constitutional project.

There is, of course, much more that should be said here. But this is enough to indicate that I believe Amar is on the right track, for he seeks to figure out those ideas, principles, traditions, customs, precedents, and so forth that help constitute the texture, however open, of constitutional language. Amar may concentrate too much on the past for my tastes, but he effectively makes the point that part of the meaning of the words that confront us today is the product of the past. But it is a continuous past, one that did not end immediately after ratification but continues into the present. To the extent that Amar helps us come to grips with the presence of the past in the words we use and interpret, he has done a great service to constitutionalism.

In some ways, Amar conducts an archaeology of our Constitution, finding various layers beneath its text, layers that develop over time and extend into our present. He offers discussions of the Constitution as enacted and as it has been "lived" by the people. He explores case law, constitutional doctrine, and the iconography of the Constitution. He explores what he calls the "feminist Constitution" and the "Georgian Constitution" (in a chapter entitled "Following Washington's Lead"). He examines the ways in which practice over time has molded today's understanding of constitutional institutions. He looks at political parties and ethics and the ways both have influenced our interpretation of constitutional text.

Amar ends his book with a look at the Constitution of the future -- what he calls our "unfinished Constitution" (a term that must be like fingernails on a chalkboard to originalists like Justice Scalia).
Studying how our existing Constitution was in fact enacted, how it has actually been glossed by past interpreters and implementers, and how it truly operates today can also help us to make sound scientific predictions about which amendment proposals have the best odds of prevailing in the days and decades ahead.
While I'm not so sure about the claim to arrive at "scientific predictions" (surely this is over the top), a look at the unwritten principles that give foundation to our written Constitution may very well help us decide what amendment proposals are most consistent with our constitutional tradition, which ones fit best with the course of our constitutional history and best continue that history. Such a look will not help anyone make sensible predictions about what will happen, at least not absent a host of additional assumptions about the direction, current condition, and fate of American political culture, about the nature of future challenges to constitutional democracy, and about the ways in which future people will respond to events and ideas we cannot even imagine. But this is a small point, one that hardly undermines the value of Amar's overall endeavor.

Amar's book provides a thoughtful, helpful, at times provocative interpretation of how we should seek to understand our American constitutional adventure. As lawyers -- as citizens -- we should seek to learn more about the constitution, to reflect upon the meaning of constitutionalism, and to engage in constitutional reasoning. America's Unwritten Constitution offers a perspective and a set of insights that can help us in these tasks. The book is long (nearly 500 pages) but reads easily. Those interested in taking their responsibilities as constitutional citizens seriously will find it a worthwhile exercise -- and a breath of fresh air after a season of stultifying discussion of original meanings and uninformed (or deceptive) political babble.

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