The Constitution, in Text and Spirit

[Valin]

The American:

Akhil Reed Amar seeks to establish a new approach to jurisprudence.

Michael M. Rosen

January 11, 2013

 

Establishing an entirely new approach to constitutional jurisprudence is hard enough, and bridging the gaps between that approach and its rivals is even harder. Yet this is exactly what Yale Law School Professor Akhil Reed Amar seeks to do in America’s Unwritten Constitution: The Precedents and Principles We Live By. While Amar is only partially successful, his efforts spur new and fascinating reflections about our founding document.

 

A counterpart to America’s Constitution: A Biography, Amar’s acclaimed 2005 opus, the Unwritten Constitution surveys our legal and historical landscape to chart those murky areas where our founding document’s express language gives way to implicit rights, traditional practice, and logical assumptions. Amar’s book aims to supply “the tools and techniques for going beyond the written Constitution while remaining faithful to it.”

 

Amar’s project is nothing if not ambitious:

 

Equipped with this comprehensive understanding of the American constitutional system, we can begin to bridge the deep divide in our current constitutional culture. Today, some judges, politicians, pundits, and scholars plant their flag on the high ground of constitutional text and original intent, while others proudly unfurl the banner of a “Living Constitution.” Too often, each side shouts past the other, and both sides overlook various ways in which the text itself, when properly approached, invites recourse to certain nontextual — unwritten — principles and practices. We are all textualists; we are all living constitutionalists.

 

As probably the most prominent exponent of the “New Textualist” school of legal thought, Amar — along with colleagues Jack Balkin at Yale and Einer Elhauge at Harvard — has written groundbreaking articles, op-eds, and books arguing that legal liberals mustn’t neglect the actual written language of the Constitution and its supporting texts, as their archrivals, the (legally) conservative Originalists, contend they do. New Textualist theory has gained purchase with the Supreme Court’s liberal minority, most prominently in the spate of decisions last June that included the Court’s upholding of Obamacare.

 

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