Freelance Constitutionalism: Akhil Amar and the History that Shadows Us

By Laura W. BrillSeptember 17, 2016

Freelance Constitutionalism: Akhil Amar and the History that Shadows Us

The Constitution Today by Akhil Reed Amar

ON SEPTEMBER 17, 2016, National Constitution Day, there will be no barbecues or turkeys or fireworks. Less well known than Groundhog Day, the day muddles through without even a Punxsutawney Phil or a Bill Murray comedy to help commemorate the 1787 signing of the United States Constitution.

If there were a fitting national tradition for marking this day, what would it be? Would it be unseemly to take inspiration from a day named after a rodent? After all, like Phil, unearthing himself annually to stare at his shadow, we are likewise called upon (however faintly) to stick our heads up for a moment to consider the long shadows cast by the oldest and briefest written Constitution of any major government in the world.

We know that it has been amended only 27 times and fits neatly into a jacket pocket, suitable for waiving in rebuke at tyrannical or narcissistic presidential candidates. Thank you, Khizr Khan. But according to a 2006 survey, Americans on average know more about the Simpson cartoon family than they do about the First Amendment.

Clearly we need a guide to help us see what we’ve been missing.

Enter a book project of “constitutional journalism,” by Yale law professor, Akhil Amar.

Amar’s The Constitution Today: Timeless Lessons for the Issues of Our Era is a single-volume collection, blessedly light on footnotes and legal jargon, of previously published opinion pieces from the last two decades with a focus on constitutional issues as they’ve played out on the national stage. Amar has set for himself the task of searching for news hooks that allow him to speak out in the popular press about important constitutional issues from presidential impeachment, to the Electoral College, to Supreme Court transparency, to equal marriage rights. Think of it as a Slate-style substitute for that Yale Law School seminar on Special Topics in Constitutional Law that most mere mortals never have a chance to take.

Often Amar’s focus is on the powers of the political branches, the procedures governing political outcomes, and important questions of governance that are often overlooked in the day-to-day news flow. Should we rid ourselves of the Electoral College? Should the Supreme Court publicly broadcast oral argument? Should a president facing impeachment voluntarily step down during the process? What did the framers think of political dynasties? Do we need to revise our laws governing succession to the presidency?

Amar is at his best when providing historical insights to modern-day constitutional issues. Several pieces in the collection, for instance, address the history of the Electoral College and its foundations in slavery and in efforts to deny both African Americans and women any political power. Most people know the Electoral College is arcane and confusing, but don’t often reflect on its ties to oppression. Amar additionally develops and publicizes the idea — also proposed by others, including Northwestern Professor Robert Bennett — that the Constitution does not inexorably bind us to the possibility that a president might be elected (as occurred in 2000) without the support of the popular vote. Instead, states can agree in advance to allocate their electors to whichever candidate wins the popular vote.

A real-world manifestation of this important idea — designed in part to avoid another Bush v. Gore — is in fact currently under construction through the National Popular Vote Interstate Compact. Already 11 jurisdictions (including California) possessing 165 electoral votes, have signed on. That is 61 percent of the 270 electoral votes necessary to definitively decide the election. If enough states sign on to total 270 electoral votes, the compact will go into effect. Missouri, Oklahoma, and Arizona are all considering legislation to join. With those additions, and just a few others, we would have, without constitutional amendment, a mechanism to ensure that the person elected president is the person with the most votes. Information in support of these measures is available here, while opposing views can be found here.

Amar argues that adopting a system in which the winner of the popular election is guaranteed to win the presidency will encourage states to expand the franchise, rather than to engage in voter suppression efforts, as several Republican-controlled states have done in recent years. Yet, without diminishing the virtues of actually awarding the office of the presidency to the candidate who gets the most votes nationally, it is not at all clear that expanding the franchise would be one of the outcomes. Why would the Republicans who currently work to increase their power by suppressing votes of minorities, the poor, the young, and others who lean Democratic, abandon this pernicious strategy simply because the presidency will be awarded to the winner of the popular vote? They might very well instead expand and intensify their voter suppression efforts.

Some of Amar’s topics raise provocative questions that perhaps no longer resonate with the immediacy they had at the time he first published. For instance, he asks: Was the now-expired independent counsel statute under which Ken Starr investigated then-President Bill Clinton, unconstitutional? Should Bill Clinton have temporarily stepped down during his impeachment trial, allowing Al Gore a role as president before the 2000 election? Did Congress misstep in moving forward with an impeachment trial, without bipartisan support?

Now, 16 years later, this episode interests us in different ways. Was the Office of the Presidency somehow damaged as a result of Clinton’s impeachment? And what does that question really mean? Did the impeachment really lead to the election of George W. Bush in 2000, as Amar suggests, or were other factors more important? Is Ken Starr to be forgiven for his prurient zealotry (which he apparently abandoned when he came to serve as president of Baylor University) on the grounds that the independent counsel statute provided him with excessively capacious powers? Despite the distance we now have from the impeachment, the book misses the opportunity to reflect on the long-term effects of that political and constitutional drama.

Another theme of Amar’s work is his adherence to “liberal originalism” — the technique that focuses on history and original intent when interpreting the Constitution, while pointing out that doing so can lead to “liberal” outcomes, in some cases. Within legal academic circles, the role of history and original intent in applying the Constitution to today’s issues is a matter of relentless debate and innumerable law review articles. Amar is a critic of those who, in his view, give too little attention to history and text. However, for practicing lawyers who advocate for their clients and need to make arguments that will appeal to judges with different perspectives, this debate can feel somewhat academic. Lawyers who have solid historical arguments favoring their clients’ positions tend to make them, even if the lawyer knows that judges have the power and obligation to consider other arguments as well. Judges, for their part, do not tend to ignore arguments based on historical practice, but may find other arguments more persuasive in a particular case.

On the most hot-button issues, history often does not provide decisive answers. Regarding the constitutional right to marriage for same-sex couples, for example, Amar pitches a welcome historical argument in favor of such right, grounding it in the concept of equal citizenship from birth, which found voice in the Civil Rights Act of 1866. That Act was adopted in the immediate aftermath of the 13th Amendment (abolishing slavery), and just before the 14th Amendment (guaranteeing equal protection and due process of law) and gives support to the idea that Congress at that time of great upheaval held a firm belief in equality from birth.

But at the end of the day, those whose constitutional vision stops at the historical will have a hard time choosing which historical reference points should serve as the basis for court rulings. Amar does not explain how — without resort to evolving judgment, reason, values, and experience — one is to choose the Civil Rights Act of 1866 as more persuasive than the laws at the time making marriage for same-sex couples unavailable. And if contemporary notions are used to select the Civil Rights Act of 1866 as more significant to the current issue of equal marriage rights, what is it that renders this use of current values acceptable, and not the application of current values to the notion of “liberty” and “equal protection”? Despite the somewhat academic nature of this debate, what is far from academic is that if judges were unable to bring anything beyond text and history to bear in their core function of interpreting the Constitution, the guarantees of equal protection and due process would have far less force than they do today, and we as a country would be worse off.

Setting aside the particular subjects covered in the book, the concept of constitutional journalism and Amar’s role as a self-described “freelance constitutionalist,” deserve comment. Judge Richard Posner of the Seventh Circuit, in a recent reaction to Amar’s writings, noted a “growing gap” between judges and law faculties, “which judges tend to think [are] increasingly distant from the actual practice of law.” Law faculties — especially new hires — are increasingly composed of PhD graduates from other disciplines who do not have significant experience in the practice of law.

On the one hand, Amar, who writes with pride of never having practiced law, and who puts law professors above lawyers as the best candidates for judgeships, is an embodiment of this shift away from the inclusion of practitioners in the legal academy. On the other hand, what his new book exemplifies is a consistent commitment over two decades to speak to issues beyond the academic, to engage with audiences beyond a New Haven classroom, and to use the perch and resources of his academic appointment to help the rest of us learn more about the history and principles that guide us today. National Constitution Day could use plenty more Amars.


Laura W. Brill is a media law and appellate litigator and a former law clerk to Justice Ruth Bader Ginsburg. As a law student at Columbia, she took a class on Federal Courts taught by Professor Amar.

LARB Contributor

Laura W. Brill is the founder and director of The Civics Center, a nonprofit focused on high school voter registration. She is a former law clerk to Ruth Bader Ginsburg and a partner at Kendall Brill & Kely LLP. 


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