MAY 31, 2015
PROFESSOR AKHIL REED AMAR has written a book that is simultaneously profound in its insights about the United States Constitution and quite frustrating for the reader. The book is filled with fascinating and important discussions of constitutional issues including state secession, the First Amendment and student speech, the Second Amendment and the right to bear arms, and the exclusionary rule as a remedy for Fourth Amendment violations. He discusses in detail how the composition of the Supreme Court has changed over time and provides a compelling account of Anthony Kennedy’s role on the current Court. Amar’s analysis is consistently original, and I learned a great deal from his clearly written discussion of these issues.
Amar does not present this as a collection of unconnected essays, instead organizing the discussion around 12 different states, each of which is used to introduce a topic. Chapter 1, for example, is titled “Illinois” and discusses Abraham Lincoln and his views on secession. Chapter 2 uses Alabama as the basis for discussing Hugo Black’s contribution to constitutional law. Amar praises Justice Black and his contributions to constitutional law highly. Chapter 3 looks at New York and Justice Robert Jackson, and the way the backgrounds of the justices have changed over time. Chapter 4 is about California and Kennedy’s importance on the Court. Chapter 5 concerns Kansas and Brown v. Board of Education. Chapter 6 is titled “Iowa,” and focuses on student speech, because Iowa is where the landmark case Tinker v. Des Moines Board of Education arose. Chapter 7 is about Florida and the Supreme Court’s terribly misguided decision in Bush v. Gore.
The last five chapters examine particular constitutional issues. Chapter 8 looks at Ohio and “Presidents without mandates” — those whose Electoral College tally was different than the popular vote totals, and those who assumed office after assassinations. Chapter 9 is about Texas and revisits Amar’s prior writings about problems with presidential succession. Chapter 10 focuses on the Second Amendment and is titled “Wyoming.” Finally, chapters 11 and 12, respectively, are about Massachusetts and New Jersey and present Amar’s views about remedies for constitutional violations, especially recounting his long-standing criticism of the exclusionary rule as a remedy for police violations of the search and seizure protections provided by the Fourth Amendment.
Every chapter is filled with interesting and important analyses of these topics. But to a large extent, organizing the book around the states is artificial and irrelevant to Amar’s discussion. For example, Amar’s discussion of the Second Amendment is no more linked to Wyoming than to any other state where there is strong opposition to gun control. His discussion of how the composition of the Supreme Court has changed, and how the justices now all come from Harvard or Yale law schools and have a narrow range of experience, really has nothing to do with New York, the chapter in which it is found. Amar has been arguing against the exclusionary rule for years; it is not about Massachusetts in any particular way. The discussion of presidential succession is placed in a chapter about Texas only because Lyndon Johnson was sworn in there after John F. Kennedy’s assassination; the issue of presidential succession has nothing specifically to do with Texas.
Occasionally, there are insights tied to a specific state. I found Amar’s discussion of Lincoln’s views on state secession particularly interesting. Amar explains that Lincoln believed that the nation preceded the existence of the states and that therefore states could not secede from it. Amar says that for someone like Robert E. Lee, who hailed from Virginia, “it was absurd to say that the Union came before the states.” But for Lincoln, who was “born in Kentucky and moved to Indiana at age seven and then on to Illinois as a young man […] it seemed natural that the Union came first logically and chronologically.”
My concern, though, is not simply that organizing the book around specific states seems contrived, but that it begs the key question of the proper relationship between the states and the nation. Throughout American history, some of the most important constitutional battles have been fought in the name of “states’ rights.” In fact, virtually without exception, “states’ rights” have been used by conservatives to oppose social progress.
In the early decades of the nation, Southerners opposed abolition of slavery by invoking states’ rights and even claimed that state governments were sovereign and could interpose their sovereignty to nullify actions of the United States government. From the 1890s through 1936, the Supreme Court declared unconstitutional many progressive federal laws, such as the prohibition of the shipment in interstate commerce of goods made by child labor, based on states’ rights. The New Deal was opposed on the grounds of states’ rights and federalism. In the 1950s and 1960s, desegregation was opposed not by defending the morality and desirability of segregation but based on states’ rights. Today, the primary argument advanced against a constitutional right to marriage equality for gays and lesbians is that the states should be able to decide this for themselves.
It is troubling that Amar writes the book as an homage to the states, but never acknowledges or discusses this disturbing history. The allocation of power between the national government and the state governments has been contested since the drafting of the Constitution in Philadelphia in 1787. Now, and always, the underlying issues have been about substantive outcomes: eliminating slavery, federal regulation of the economy, desegregation, marriage equality. Discussion of the states and the nation must take this into account.
There is one other aspect of Amar’s book that I find frustrating, and it is the core of a disagreement that we have had for decades. Amar’s approach to constitutional interpretation places great emphasis on the text of a provision and its history, with special emphasis on what was intended at the time a constitutional provision was adopted. He writes: “Sound interpretation of the Constitution often seeks to read the text as it was understood by the people who framed and ratified the language in question, or who reglossed it when adopting a later amendment.” For example, his chapter on the exclusionary rule focuses on English history before the Constitution and argues that those who ratified the Fourth Amendment did not intend that evidence from illegal searches would be excluded from criminal trials.
In part, my criticism of Amar’s methodology is based on his inconsistency. Amar expresses his strong support for a constitutional right to marriage equality. But in doing this, there is no mention of the text or the framers’ intent, which obviously do not support such a constitutional right. Those who engage in originalism tend to do so when it yields the results they like. Antonin Scalia and Clarence Thomas use originalism to justify opposing the right to abortion or rights for gays and lesbians, but they ignore the original understanding when it comes to affirmative action where it was very clear that the framers of the Fourteenth Amendment meant to allow race-based remedies.
My larger criticism of Amar’s methodology is that it ignores the importance of contemporary needs in interpreting the Constitution. The desirability of the exclusionary rule cannot be determined based solely on English law from the 18th century. The question is whether deterring police misconduct, and protecting people from being convicted because of it, justifies excluding illegally obtained evidence. If I were to debate Amar on the exclusionary rule, our arguments would go past each other. He would focus, as he does in chapter 11, on what the framers of the Fourth Amendment thought. I would argue about the need for the exclusionary rule in order to enforce the Fourth Amendment.
The Constitution was written for an agrarian, slave society. Those who drafted it, however brilliant, could not have imagined the world of the 21st century and the constitutional issues of these times. Their intent should be of limited import in constitutional interpretation. That is true of all parts of the Constitution. The Congress that ratified the Fourteenth Amendment also voted to segregate the District of Columbia public schools. But that surely does not mean that Brown v. Board of Education was wrongly decided.
Despite all of these concerns, Amar has written a fascinating book on constitutional history. I learned a great deal from it, as I believe will every reader. The underlying issues — the proper role of the states in the national government, the appropriate way to interpret the Constitution — will be argued over as long as the United States exists. Amar’s new book has a great deal to say on these topics and is definitely worth reading.