Unenumerated Rights: A Conversation with Akhil Reed Amar

By Don FranzenDecember 9, 2012

Unenumerated Rights: A Conversation with Akhil Reed Amar

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 text. But — and here’s the key — we should never lose touch with the text, we should never undercut the text. We can supplement it in certain ways but we should never supplant it. So the trick is how do you go properly beyond, beneath, behind the text without losing faith with the text.

DF: Could you give us an example, for the sake of our readers, where in order to be true to the text you have to go beyond the text?

ARA: Easy examples are adhering to principles such as separation of powers, checks and balances, the rule of law, limited government and federalism. None of those words or phrases expressly appears in the text, and yet those words and phrases help us make constitutional arguments and decide constitutional issues. Those are the easy ones. Now I’m going to give you an edgier example —

DF: Could I add a couple more easy ones?

ARA: Sure.

DF: Reading your book, I think you make note of proof beyond a reasonable doubt —

ARA: Yes

DF: Presumption of innocence

ARA: Yes.

DF: Most Americans would consider those inherent rights.

ARA: Yes, and one person one vote. But presumption of innocence and proof beyond a reasonable doubt are particularly interesting — proof beyond a reasonable doubt — because that very phrase post-dates the framing of the Constitution — it comes about a little bit later. Now for a couple of edgier examples — first one: the right of a criminal defendant to take that stand in his own behalf. That’s edgier because not only does the text not say that, but also at the Founding, no criminal defendant, none, had such a right in any court in America, state or federal. And today that’s a right judges cheerfully enforce in every court, state and federal. And that’s a right that judges across the spectrum think is a constitutional right. It’s a 9-0 right in the United States Supreme Court today. It’s not controversial the way Roe v. Wade is controversial. Let me give you a second one, maybe even edgier, because the Ninth Amendment after all says that there might be unenumerated rights and the Fourteenth Amendment after all talks about privileges and immunities of citizens that states can’t abridge even though that amendment does not exhaustively itemize these rights, privileges, and immunities. See, you might think there the text itself in a couple of places — the Ninth Amendment, the 14th Amendment — invites vigorous protection of unenumerated rights. But now let me give you a second example. This is how I open the book: the text seems pretty clearly to say that the Vice President presides over the Senate, and seems pretty clearly to say that the Senate tries all impeachments, and therefore seems pretty clearly to say — in the way that 2+2 pretty clearly equals 4 (laughs) — that the Vice President would preside over his own impeachment. That’s what the text pretty clearly seems to say, and that can’t be right. And so I try to show you that when you read the Constitution holistically, when you are attentive to things that are unwritten as well as written, there are deep underlying principles like the rule of law. And central to the rule of law — and of course the Constitution describes itself as law — is the idea that no person shall be the judge in his own case. Blackstone himself had said that before the Constitution was adopted, and had used that very example to show how sometimes we have to go beyond the words of a statute in order to faithfully apply the statute. If the statute says that the lord of the manor presides over all cases, we don’t read that statute to apply when he himself is a party. If the statute says, Blackstone reminds us, that everyone who spills blood in the streets of Bologna shall be punished, it doesn’t apply to the surgeon who in an emergency performs an operation to save a stricken pedestrian. So I begin the book by showing you how you have to go beyond literalism in order to do justice to the Constitution’s deepest premises and promises.

DF: So would you say your approach is perhaps a holistic approach to the Constitution?

ARA: Yes, and there are different ways of going beneath, beyond and behind the document. The technique that I just applied involves reading the text of the Constitution as a whole. There are other techniques that the book also explores. For example, looking at how ordinary Americans actually live their lives every day and in the process embody unenumerated rights. That’s more of a Burkean chapter about custom and tradition and the folkways of Americans, which do evolve. And the Ninth Amendment says you can have more rights than the text specifies — not less, but more. So you have to connect the lived experience of Americans with something in the text, even though the text has not exhaustively itemized all the unenumerated rights — the lived, the experienced, the customary, traditional, and evolving rights. Other chapters give you still other ways of looking beyond the text. For example, looking at how government actually works and the precedents and the practices of institutions of government, and how these precedents and practices help clarify ambiguous provisions of the text. When it comes, for example, to presidential power, more important often than what the text says is what George Washington did as our first president. He established all sorts of clear understandings about proper presidential power. And there are proper understandings, even though they are not unambiguously in the text, but his own practices — Washington’s that is — established them.

DF: Now, of course the counterargument of the originalists or textualists to the approach that you stand for is that this just opens up the floodgates to any and all interpretations a judge might come up with. Very famously, I suppose is the privacy line of decisions that led up to Roe v. Wade — the number one example in the indictment of an expansive reading of the Constitution. What is your answer to the originalists when they say, well you’ve just opened it up to whatever a judge thinks ought to be the meaning, or whatever a judge wants to add to the list of rights?

ARA: My answer is severalfold. First I too am a textualist, I too am an originalist, indeed, frankly I think I’ve done as much writing and research on the history behind individual provisions of the Constitution as any human being currently alive. That’s a very bold claim but I actually don’t think there is anyone who has done more. So I too am a textualist and orginalist — that’s what my last 500-page book was about. And yet — and this is the second point — we may all be textualists, but we are also all living constitutionalists. Every judge — left, right and center — believes that a criminal defendant has the right to take the stand in his own behalf. And that’s not in the text, and it’s not in the original understanding of the original Constitution, or the original Bill of Rights, for that matter. Or even the 14th Amendment, because at the time of the 14th Amendment almost no state allowed criminal defendants to take the stand in their own behalf. So we are all living constitutionalists — Justice Scalia, Justice Thomas, Justice Alito as well as yours truly. So now, what are the rules? And here’s the third point — this book tries to show you examples of where judges have gone too far, where you can’t get certain things out of the Constitution, so there do need to be rules. For example, I am a harsh critic of the exclusionary rule. The book actually criticizes the majority opinion in Roe v. Wade quite extensively. So why would, for example, Roe be a problem, or the exclusionary rule be a problem, but not the right for a criminal defendant to take the stand in his own behalf? Or the right in Gideon to have appointed counsel? And one difference that I point out is that when Gideon comes down, almost all the states are already providing appointed counsel. When the Supreme Court announces a right to take the stand in your own behalf, if you are a criminal defendant, almost all courts are already doing that, almost everywhere in America. When Griswald v. Connecticut decided a privacy issue about the right of a married couple to use contraception in their own home, almost every state recognized such a right. Only Connecticut of all the states had ever sought to make it a crime to use contraception in your own home even if you’re a married couple. So those rights, even if unenumerated — the right of privacy in your home to use contraception with your spouse, the right to take the stand in your behalf if you’re a criminal defendant, the right to appointed counsel if you’re a criminal defendant — those rights were very well established in American custom, tradition and practice. Whereas the right that was announced by the court in Roe v. Wade was pretty far out ahead of practice. Roe v. Wade actually struck down the laws of about 49 states. Only New York State, I believe, was compliant when Roe came down with the rules it pronounced. The exclusionary rule, when it was imposed on the states in Map v. Ohio, was opposed by the practices of most of the states. When earlier Weeks v. United States announced the exclusionary rule for the federal government, that was not at all in keeping with the practices that were operating on the ground in most parts of America. So the book does try to show you, not just when you can go beyond the text, but when you can’t, when you’ve gone too far, when you’re not playing by the rules.

DF: That’s very interesting, but doesn’t the court sometimes need to get ahead of the public — for example in ending segregation?

ARA: Ah, yes.

DF: In the separate but not equal cases, like Brown v. Broad of Education, wasn’t the court ahead of the public?

ARA: Let’s take Brown — in my view Brown is a pretty easy case because whether or not it’s ahead of the public, the court in Brown v. Board of Education, is following the text. The text really does say equal. Segregation really isn’t equal. Next case. That’s pretty easy. So, I’m not saying that popularity is necessary for the protection of a right, because if it’s in the text, it’s in the text. That’s enough. But if it’s not in the text, and the right is not popular, then in what sense is it a right of the people? So that’s my basic point, that the Ninth amendment says you can have more rights than the text allows, never less, but if you’re going to add rights, add rights that the people themselves believe in. Rights like Griswold, like Gideon, like the right to take the stand in your own behalf. But it’s never an excuse — and this is a good reminder — to have an unwritten constitution that somehow erases all the written rights that we already do have, rights like equality. So the unwritten constitution, you see, has to fit with the written constitution in a very special way. There are ways of going beyond the written Constitution that not break with it. Additional rights are okay, the Ninth Amendment says they are okay, the 14th Amendment says they are okay, even if those amendments don’t tell us exactly how to find them or exactly what they are. They say additional rights are okay. Lesser rights are generally not okay. And to ignore the word equal, which really does appear in the Constitution, would be improper. Brown, in my view, was very easy. The text says equal and segregation wasn’t equal.

DF: Well, it sounds like something Justice Scalia could actually accept.

ARA: On that particular point: Robert Bork said just that in his confirmation hearing. He was my teacher at Yale by the way.

DF: Now correct me if I’m wrong, but I think at some point in the confirmation hearings they asked Robert Bork about the Ninth amendment, and he said words to the effect of “I don’t know what it means” — am I correct?

ARA: Yes Robert Bork said, ‘Gee, the Ninth Amendment is like an inkblot. Its as though an inkblot covered over the words and I just don’t quite know what is underneath the inkblot.’ It’s a mystery, wrapped in an enigma, in a puzzle. I have a whole chapter trying to give ordinary citizens a seminar on the Ninth amendment and give them some guidelines for the Ninth Amendment. And that is the chapter in which I say that certain rights, if the American people themselves embrace them in their actual practices, may become rights of the people. So this basically kills two birds with one stone. One, it finds a meaning for the Ninth Amendment, and, two, it provides a basis for much of our uncontested case law. Griswold today, you see, is not controversial. Robert Bork expressed some doubts about Griswold, and the most important thing you need to understand is that he didn’t get confirmed. All the justices who have since been confirmed — with the exception possibly of Justice Scalia — have actually affirmatively pledged allegiance to Griswold in their confirmation hearings. And that’s because Griswold is a generally popular right, or put a different way, a right of the people.

DF: It seems the Ninth Amendment undoes the coherence of the strict textualist argument, because how can you have a text that invites reference to things outside of it?

ARA: And what I say is, read it, and apply its seemingly plain meaning. It talks about rights of the people. Now how would we find rights of the people? And my claim is, look to the people themselves. Look to actual, lived experiences on the ground. And that doesn’t get you Roe v. Wade as written in 1973, but it does get you Griswold v. Connecticut and Gideon v. Wainwright.

DF: Does it get you Lawrence v. Texas, the case that declared anti-sodomy laws unconstitutional?

ARA: Yes. And indeed, Justice Kennedy himself in the Lawrence opinion, emphasizes the fact that the overwhelming number of states actually do not prohibit and criminalize the sexual conduct in question. And he further points out that even when states in the past have laws on their books that seem to prohibit this conduct — oral sex, anal sex — these laws were in fact not enforced. And so, Lawrence goes out of its way to highlight the court’s harmony with actual American practices on the ground in most places. I’ll put it a different way, Lawrence is a pretty popular right and it’s getting more popular every day. And there are not many people out there in the world, leading politicians, who try to run against Lawrence. Whereas, Roe is still deeply divisive. The Republican party platform attacks Roe but it doesn’t really attack Lawrence in the same way.

DF: Now there are some big privacy right issues on their way to the court. For example, the Proposition 8 case from California —

ARA: Yes, so one way of thinking about my chapter on unenumerated rights is simply to say that as more and more states begin to recognize gay marriage, it will become easier and easier for the courts at a certain point to say this has become a right of the people. My prediction would be that it will come within the next 10 years, because within the next 10 years this right will be more and more prominent in more and more states.

DF: And what happens to the Defense of Marriage Act (DOMA) then?

ARA: I don’t have anything in the book about The Defense of Marriage Act, there’s nothing specifically about that issue, but as more and more states recognize gay marriage, it may become a little bit more odd for the federal government to not respect state choices on this topic. So, even now it is possible to maybe predict that the now-pending DOMA case may bring the libertarians on the court and the egalitarians on the court into alignment with the states’ rights folks. Because Congress here has passed a law that in some ways is disrespectful of state laws, which in many states are permitting gay marriage.

DF: Regarding DOMA, I have a hard time, just from a Federalist point of view, understanding why the federal government is legislating on the topic of marital status?

ARA: And there are some states’ rights folks on the court that might be interesting allies on just that topic. Whether or not they are willing to consitutionalize the right to gay marriage — they may not be — they may think that the federal government should basically defer to state law on this topic, which has been traditionally addressed by state law, the eligibility for marriage.

DF: It’s a very interesting observation, it’s something akin to what’s happening in the divergence between state law on marijuana use and federal law on marijuana use.

ARA: It is very similar to that.

DF: So, could you give me an idea, if you were going to do a score card of the current composition of the US Supreme Court, which of the justices (if any) do you think are most sympathetic to the type of interpretation that you’re advocating in this book?

ARA: Truthfully, I think there’s something for everyone, and there’s probably something to offend everyone [laughs]. So it cuts across the spectrum. So, my friends on the right of the court will actually, I think, agree with my critique of the exclusionary rule. I may go even further than they do. I say the exclusionary rule can’t be properly derived from the unwritten constitution, because there really are rules of proper interpretation and the exclusionary is improper because it doesn’t follow those rules. So Justice Thomas may like that, and Justice Scalia, Justice Alito, and Chief Justice Roberts. And Justice Kennedy has his doubts about the exclusionary rule, but it is strongly precedented. On the left of the court, various justices will like a lot of what I have to say about the general rightness of the Warren court vision. They will like my strong defense of congressional power to protect liberty and equality under Section Five of the 14th Amendment. They will probably applaud some of the things I have to say about the right to vote in America, a phrase that didn’t appear in the original Constitution that has become increasingly important over the years. So that’s it, a little something for everyone, and probably no justice will agree with everything.

DF: Do you think there’s of an emerging consensus on our Supreme Court on some of these issues?

ARA: Yes, and that’s why I begin by saying we are all textualists, we are all living constitutionalists. I wanted to call attention to the fact that everyone thinks the text is important, and also that everyone thinks that a criminal defendant has a right to take the stand in his own trial. That’s actually common ground for all nine of the justices. So we’re all textualists, we’re all living constitutionalists, now let’s try to figure out what the rules are and where we really disagree. The real line of disagreement isn’t that some of us are textualists and some of us just make things up. That’s actually not the real line. We are all textualists, we are all living constitutionalists, and lets then talk about the cases where we really do disagree. Some people have a more robust vision of women’s equality than others, and so on. Those are the lines, not that there are some justices who go beyond the text. All the justices go beyond the text all the time. The Justices who care a lot about the text like Justice Scalia and Justice Thomas talk about federalism all the time. That word isn’t in the constitution. Or limited government, or separation of powers. So I am trying in fact to map out common ground and identify what the real rules of the game are.

DF: Well, I reviewed Judge Wilkinson’s book earlier this year, Cosmic Constitutional Theory. He just sort of ends up in despair, saying he can’t accept any theories of the Constitution because the litmus test for him is whether it restrains judges — does it result in judicial restraint?

ARA: Right.

DF: But I kind of took an opposite conclusion. I drew the conclusion that you must inevitably bring values to the bear on constitutional decisions, and that’s what he proves. It’s not what he set out to prove. So is that where we really do come out, that ultimately, in order to read this document, that we do have to bring to bear some sense of what is right and wrong, some normative perspectives — and that helps us ultimately inform the decisions that have to be made in the tough cases?

ARA: I think that my lesson would be that the Constitution isn’t just about the judges. And the other two books that you mentioned, with the greatest respect, are written by judges for judges. And they offer a New Yorker’s map of the world, that’s all about the judiciary. And I’m trying to write a book about the Constitution itself, a book ultimately about the citizenry — ‘we the people’, my book is for them. All sorts of sections in my book are about stuff that would just never get to court, like for example the constitutionality of the filibuster. It doesn’t properly belong in court but it is a huge issue that is going to be hashed out this January. It is a constitutional question, and I’ve got a lot to say about it, but that’s never going to come before Judge Wilkinson or Justice Scalia. So, they are writing books from the perspective of judges deciding cases, and I’m trying to write a book for a general audience about the constitution as a whole. And they are spending their lives deciding cases, many of which aren’t constitutional cases, they are statutory cases or common law cases. That’s definitely true of Judge Wilkinson, lower court judges don’t get very many constitutional cases. The steady diet is of statutory cases or common law. And even Justice Scalia, a lot of what he has to do is nonconstitutional. For example, there’s a case today he and his colleagues are hearing, and it is about an environmental statute as it applies to logging roads in the Northwest. So they are thinking about deciding cases every day and what is the proper role of the judge. I am thinking every day about the constitution, and nothing but the constitution. Sometimes it gets into court, sometimes it raises issues that will never be decided by a court, but they are still constitutional questions.

I’m trying to explain how ordinary citizens need to understand the constitution. The Constitution is designed to be understood by ordinary citizens, that is why it’s so short. It’s 8,000 words with all the amendments start to finish, because it is written for the people. And precisely because of that, not everything actually could be itemized, they couldn’t have written it in and still be short. So it has to be short because it’s ultimately about the citizenry, but now the citizenry has to figure out how to read it, what the tools and the techniques to read it are, precisely because not everything is listed in black and white. That’s what my book is about, how to read it and never lose faith with it but know how to go beyond it when appropriate.


LARB Contributor

Don Franzen is a lawyer in Beverly Hills specializing in entertainment and business law. He has lectured on entertainment law at the Eastman School of Music, Santa Monica College’s Academy of Entertainment and Technology, the Berklee School of Music in Valencia, Spain, and lectures at UCLA’s Herb Albert School of Music, where he teaches two courses on the law and the music industry. He has published articles on legal issues in newspapers, magazines, and law journals. He serves on the board of the Los Angeles Opera and counts among his clients leading performers in opera, orchestral music, film, and the recording industries. He is the legal affairs editor for Los Angeles Review of Books.


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