AKHIL REED AMAR IS STERLING PROFESSOR of Law and Political Science at Yale University, and occasionally a visiting professor at Harvard, Columbia, and Pepperdine Law Schools. The author of four books, including America’s Constitution and The Bill of Rights, Amar has recently released a new book, America’s Unwritten Constitution – The Precedents and Principles We Live By, in which he explores the idea that there are sources of constitutional law outside the document’s literal text. Professor Reed talked about this newest work in a recent interview with LARB’s Legal Editor, Don Franzen. America’s Unwritten Constitution is reviewed by Bryan A. Garner in this issue of LARB.
Don Franzen: I found your book immensely interesting and phenomenally well researched – it would be a great book in any constitutional law class. To set the stage for our readers, it seems to me that your book, together with two other books we have reviewed this year — Judge Wilkinson’s book on Cosmic Constitutional theory and Justice Scalia’s book written with Professor Garner on Reading Law — give us three very important contributions to this ongoing, centuries-long debate about what this document — this Constitution — actually means. What were you seeking to contribute to the discussion about the meaning of our founding document?
Akhil Reed Amar: Thanks. What I aimed for was a panoramic picture of the actual practice of doing constitutional law, making constitutional arguments, reaching constitutional decisions. A picture that ranged across all three branches of government, across both state and federal governments, across many different subject areas — criminal procedure, military structure, women’s rights, religious equality, et cetera, et cetera: in short, a comprehensive overview of constitutional argumentation and constitutional decision making.
DF: And of course central to your book is the idea that the meaning of the Constitution is actually to be gathered from many sources, not just the text of the document itself. Would that be a fair way of summarizing your view?
ARA: Exactly. Seven years ago I wrote a very long, I hope comprehensive book introducing the general reader to the text of the Constitution, from the first sentence to the last. I started with the Preamble, then went through every article in textual order — Article I, II, III and so one through Article VII — and then went through every amendment in textual order: the first amendment, the second, and so on through the 27th. That was the introduction to the text of the Constitution from start to finish. And that book ended by talking about the creative white space beyond the 27th amendment. What will the next amendment look like, and the amendment after that? And that’s unwritten. Well, this whole book that I’ve now completed is the sequel to that and it too actually ends with questions about the unfinished constitution. What will our generation add to the text? What will the next generation add to the text? But that’s not the only unwritten element of our system. In all sorts of ways, in order to reach sensible constitutional decisions we must go beneath, behind, and beyond the tex...read more