FROM THE BACK OF THE BOOK OCTOBER 19, 2012
America’s Unwritten Constitution: The Precedents and Principles We Live By
By Akhil Reed Amar
(Basic Books, 615 pp., $29.99)
THE CONSTITUTION of the United States has its passionate votaries—none more so than Akhil Reed Amar of Yale Law School—as does the Bible. But both sets of worshippers face the embarrassment of having to treat an old, and therefore dated, document as authoritative. Neither set’s members are willing to say that because it is old, and therefore dated, it is not authoritative. Some say it is old but not dated; they are the constitutional and Biblical literalists. But most of the worshippers admit, though not always out loud, that their holy book is dated and must therefore be updated (without altering the text) so as to preserve its authority. They use various techniques for updating. One is misinterpretation. Another is loose interpretation, which can be thought a form of realism. Amar, who is merely dismissive of conservative textualists and originalists, is harshly and unfairly critical of realist judges such as Oliver Wendell Holmes and realist professors such as David Strauss, lest he be confused with them.
Amar’s method of updating, which is also the one the Catholic Church applies to the Bible, is supplementation from equally authoritative sources. The Church believes that a Pope receives divine inspirations that enable him to proclaim dogmas that are infallible and thus have equal authority with the Bible. Jesus Christ’s mother does not play a prominent role in the New Testament, but she became a focus of Catholic veneration, and in 1854 the Pope proclaimed the dogma of Mary’s Immaculate Conception (that is, that she had been born without original sin). This and other extra-Biblical Catholic dogmas, such as the Nicene Creed, which proclaimed the consubstantiality of the Son and the Father, form a kind of parallel Bible, equal in authority to the written one, which reached its modern form in the third century C.E.
This is the line taken by Amar. Alongside the written Constitution is an unwritten constitution. They are consubstantial. The Constitution, like the teachings of the Catholic Church, is a composite of a founding document and a variety of supplementary practices and declarations (many of course in writing also). No matter how wild Amar’s constitutional views may seem, he claims that they are in this two-in-one constitution; that he did not put them there.
Actually, despite the book’s title, it is not two in one—it is twelve in one. There is not just one unwritten constitution, in Amar’s reckoning; there are eleven of them. There is an “implicit” constitution, a “lived” constitution, a “Warrented” constitution (the reference is to Earl Warren), a “doctrinal” constitution, a “symbolic” constitution, a “feminist” constitution, a “Georgian” constitution (the reference is to George Washington), an “institutional” constitution, a “partisan” constitution (the reference is to political parties, which are not mentioned in the written Constitution), a “conscientious” constitution (which, for example, permits judges and jurors to ignore valid law), and an “unfinished” constitution that Amar is busy finishing. All these unwritten constitutions, in Amar’s view, are authoritative. And miraculously, when correctly interpreted, they all cohere, both with each other and with the written Constitution. The sum of the twelve constitutions is the Constitution.
One is tempted to say that this is preposterous, and leave it at that. But it is an attempt to respond to the felt need of professors of constitutional law, and of judges who rule on constitutional cases (particularly Supreme Court justices), to find, or at least to assert, an objective basis for constitutional decisions. On the eve of the Supreme Court’s decision on the constitutionality of the Affordable Care Act—a time of liberal panic—Amar was quoted as saying that if the Court invalidated the act “then yes, it’s disheartening to me, because my life was a fraud. Here I was, in my silly little office, thinking law mattered, and it really didn’t. What mattered was politics, money, party, and party loyalty.” But the constitutional “law” that matters to Amar is not what other lawyers understand law to be. It is a palimpsest of twelve constitutions, only one of which is real.
THE REALITY THAT Amar refuses to acknowledge is that the Constitution of 1787, though a remarkable achievement for its time, is time-worn, as are many of its amendments. And though the Constitution has been amended twenty-seven times (though only seventeen times since 1791, when the first ten amendments, what are referred to collectively as the Bill of Rights, were adopted), it is extraordinarily difficult to amend. An amendment must not only be proposed by a two-thirds vote of both Houses of Congress, it must also be ratified by three-fourths of the states. (An alternative route to amending requires that two-thirds of the state legislatures ask Congress to convene a convention to propose amendments, which then require ratification by three-fourths of the states. It has never been used.)
The brevity of the Constitution and the difficulty of amending it, coupled with the limitations of human foresight and the enormous changes that the country has undergone since 1787 (and 1868, when the Fourteenth Amendment, today the most important post–Bill of Rights amendment, was ratified), have created an irresistible pressure for judicial amendment in the guise of interpretation. But the guise has worn thin since the rise of schools purportedly of interpretation though realistically of rhetoric and ideology, which under such names as “textualism” and “originalism” argue that legitimate interpretation verges on the literal, rather than being loose and pragmatic. The “textual originalists” have placed the loose constructionists on the defensive. Loose construction sounds like, and in fact is, judicial supplementation of the Constitution. It treats the Constitution as a delegation to judges of the authority to make constitutional law within the broadest limits—the kind of open-ended delegation illustrated by Congress’s authorizing a regulatory agency to fix “just and reasonable rates” for a regulated service. This approach to the Constitution is captured in the phrase the “living Constitution”—a very aged Constitution on judicial life support.
A constitution deals with politically sensitive subjects. Interpretations of it thus have political consequences. They also have political motivations. A genuine textualist, a genuine originalist, would conclude that there was no federal authority to create an air force as a military branch separate from the army and the navy; no constitutional right to keep and bear arms other than in connection with militia service, or to donate money to politicians; and no authority for the president to wage a war without a congressional declaration. But all these are rights or powers that today’s textual originalists, who are politically conservative, passionately endorse. Current constitutional doctrines reflect the political preferences of past and present Supreme Court justices, as well as broader public opinion, rather than being merely the disinterested application of the constitutional text to disputes, using an interpretive approach chosen without regard for its political consequences. Disinterested application would not work, because the text itself does not resolve most contemporary issues of constitutional law.
IN MOST ERAS, a majority of justices, albeit often a slight majority, have been thoughtful, civilized, and cautious, and as a result the body of American constitutional law is, on the whole, adequate to the nation’s needs, though there are serious blemishes—far more than Amar, who has a cheerleader’s disposition, is willing to acknowledge. What the justices do not have, and what Amar wishes to provide them with, is a methodology that will enable them to produce decisions that are objectively correct.
If instead of invoking unwritten constitutions, Amar were content to note and to describe the multifarious influences on the judicial formation of constitutional doctrine, he would be on solid ground. But he takes the notion of unwritten constitutions literally, and the results are bizarre—even more so than those of The Invisible Constitution, by Amar’s Harvard counterpart Laurence Tribe. Tribe was able to conjure only six invisible (not to him, of course) constitutions, all beginning—a remarkable coincidence—with the letter g, such as the geodesic constitution and the gyroscopic one. Amar, with eleven unwritten constitutions, has more putty to knead and shape: eleven unwritten constitutions to Tribe’s six invisible ones. (I expect we will soon see a book titled The Hidden Constitution.)
Consider, as illustrating Amar’s method, his discussion of the right of women to serve on juries (really a duty, since jurors are conscripts rather than volunteers). The Nineteenth Amendment provides that the right of an American citizen to vote shall not be denied on account of sex by either the federal government or any state. It was ratified in 1920. Many years later the Supreme Court held that it is a denial of equal protection of the laws (and hence a violation of the Fourteenth Amendment) to forbid women to serve on juries. Amar argues that this cannot be right, because the equal protection clause of the Fourteenth Amendment cannot apply to voters. This is because, like the due process clause in the same amendment, the equal protection clause protects “persons” (rather than only American citizens, as does the same amendment’s privileges and immunities clause, which states that “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States”), and no one thinks that foreigners have a constitutional right to vote in American elections. But the Nineteenth Amendment, Amar argues, guarantees the right of women to vote as jurors as well as in elections because voting is voting—it is not limited to elections—and by further implication the amendment guarantees as well the right to serve on a jury. He calls this “a simple implication of [women’s] right to vote generally.” It is an example of the “implicit” constitution, one of his eleven unwritten constitutions, and also of the “feminist” constitution.
It is an odd example of either. It implies that if a men’s club decides any issues by voting (as undoubtedly it will, as in the admission of new members), it must admit women as members, because voting is voting. By this logic the Nineteenth Amendment made men’s clubs unconstitutional. Amar’s reasoning also implies an odd understanding of the equal protection clause—that if voting were not categorically excluded (by Amar’s interpretation of the equal protection clause) foreigners would have a constitutional right to vote in American elections because they are persons. (Amar appears actually to believe this: why otherwise his categorical exclusion of voting from that clause?) But the clause as sensibly interpreted forbids only arbitrary or deeply hurtful differences in treatment—it would be senseless if thought to forbid all differences in treatment. There is nothing arbitrary or offensive about limiting the right to vote in American elections to American citizens, or for that matter to adult American citizens.
This is not the only time Amar gets into trouble by moving a decision that he likes to the privileges and immunities clause from elsewhere in the Fourteenth Amendment. He applauds Griswold v. Connecticut, which invalidated Connecticut’s prohibition of the use of contraceptives (including use by married couples), but he says the decision should have been based not on the due process clause (which was the Court’s ground) but on the privileges and immunities clause. He thinks that a citizen’s constitutionally protected privileges and immunities are derived from “what [Americans] do, what they say, what they believe”—that is, from the “lived” constitution. But since the privileges and immunities clause confers rights only on citizens, this leads to the absurdity that married foreigners in Connecticut could be forbidden to use contraceptives. (And what about a foreigner married to a citizen? Can the citizen use a contraceptive but not the foreigner?)
I have yet to describe Amar’s most outlandish riff on the Nineteenth Amendment. Comparing its enactment to the prosecution of the Nazi leaders at Nuremberg, he argues that both proceedings dispensed justice retroactively in order to make amends for past enormities. The Nuremberg Tribunal punished the Nazi leaders for violating principles of international law that had not been widely recognized previously, and Amar argues that the Nineteenth Amendment authorized judges to invalidate interpretations of the written Constitution that might have been influenced by the exclusion of women from playing any role in the Constitution’s ratification. Hence the decision in which the Supreme Court invalidated provisions of the Violence Against Women Act as exceeding Congress’s authority to regulate interstate commerce was wrong, Amar argues, because the Nineteenth Amendment implicitly invalidates any interpretation of earlier constitutional provisions, such as the commerce clause of Article I, that harms women, because women had no opportunity to participate in the drafting or the ratification of those provisions. Similarly, Amar argues, the Supreme Court could have invalidated the laws against abortion as soon as the Nineteenth Amendment was ratified, holding that the laws would be valid “only if reenacted by a legislature elected by women voting equally alongside men.” By this logic, the Twenty-Sixth Amendment, ratified in 1971, which gave 18-year-olds the constitutional right to vote, invalidated all earlier interpretations of the Constitution adverse to 18- to 20-year-olds, such as conscription of minors.
Not until the 1970s did the Supreme Court strike down laws outside the scope of the Nineteenth Amendment that discriminated against women. It did so on the authority of the equal protection clause. Amar thinks that it could have done it on the authority of three of his unwritten constitutions. The Equal Rights Amendment would, if ratified, have decreed that “equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.” Congress proposed the amendment in 1972, but it was never ratified. No matter; the “broad popular support” for the amendment “was entitled to interpretive weight as a popular gloss on the Fourteenth Amendment and the Ninth Amendment, in keeping with the principles of America’s lived Constitution.” (The “feminist” unwritten constitution thus overlaps the “lived” constitution as well as the “implicit” constitution.) Failure to ratify a proposed amendment merely deposits it in an unwritten constitution that is itself a valid source of constitutional rights.
I NEED TO say something about Amar’s treatment of the Ninth Amendment, which he mentions in connection with the Equal Rights Amendment and which states that “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Amar calls this a “textual portal welcoming us to journey beyond the Constitution’s text.” He thinks that the Ninth (along with the Fourteenth) Amendment invites people to “root” claims of constitutional entitlement “directly in principles of truth, justice, and the American way as understood and practiced by the American people.”
He thus reads it to forbid infringing on rights even if they are not mentioned in the Constitution and did not exist when the Ninth Amendment was ratified in 1791. Rights such as the right to decide what to eat or when to go to bed are part of the unwritten constitution, and therefore sacrosanct. “A strongly held belief by 55 percent of Americans that they have a constitutional right” is enough to make it “a truly unenumerated” constitutionally protected right. And doubtless more than 55 percent of Americans (especially if one excludes children, prison inmates, and soldiers) think they have the right to go to bed when they want to go to bed; and therefore it is their constitutional right. (And likewise to buy sugared soft drinks in large containers—Mayor Bloomberg, watch out!) On the eve of the Supreme Court’s decision in the Affordable Care Act case, two-thirds of Americans were opposed to the key provision of the Act and the focus of the constitutional challenge: the individual mandate—the requirement that everyone who could afford to buy health insurance must do so. Why wasn’t Amar rooting for the invalidation of the mandate as an infringement of the “lived” constitution?
Amar misunderstands the Ninth Amendment. It was included in the Bill of Rights in order to avoid any implication that the list of rights in the original Constitution and the first eight amendments extinguished other rights—that, for example, the fact that the Seventh Amendment guaranteed a right to trial by jury in a civil case at law in federal courts as long as the value in controversy exceeded $20 precluded a state from conferring a right to trial by jury in a state court as long as the value exceeded $1.
Amar’s treatment of the Ninth Amendment is of a piece with his claim that the Bill of Rights merely “affirmed and declared” existing rights, rather than creating rights—so that even if there were no First Amendment, there would be a constitutional right to freedom of speech and the press because eighteenth-century Americans generally believed they had such a right. He is mindful that the eighteenth-century concept of freedom of the press, as stated for example by Blackstone, was limited to prohibiting censorship; seditious and blasphemous publications could be punished after the fact, though only by a jury. But he says there was no parallel limitation on freedom of speech, although about freedom of expression Blackstone said in Book IV of his Commentaries on the Laws of England: “Neither is any restraint hereby laid upon freedom of thought or enquiry: liberty of private sentiment is still left; the disseminating, or making public, of bad sentiments, destructive of the ends of society, is the crime which society corrects” (emphasis added). Speech can be used to disseminate, or to make public, dangerous ideas. Englishmen’s right of virtually unlimited public free speech was not recognized until the creation of the Speakers’ Corner of Hyde Park in 1872. English plays remained subject to censorship until 1968. Amar argues that a more capacious concept of free speech was emergent in eighteenth-century America, but his notion that the concept was an existing right is a stretch. The Alien and Sedition Acts of 1798 recognized no such right and were not held unconstitutional.
For Amar, rights that pre-existed the Constitution are elevated to constitutional rights and so govern the future, while rights added to the Constitution after its initial promulgation alter the earlier constitutional rights and project the altered rights into the future. On the same day that the Supreme Court in Brown v. Board of Education outlawed racial segregation in the public schools of the states, the Court in Bolling v. Sharpe held that the District of Columbia could not segregate its public schools either. The case is an embarrassment to legalists, because the equal protection clause, which was the basis of Brown, is applicable only to states. The pragmatic justification of the Bolling decision is that Brown would have lacked credibility had the Court in effect exempted its own locale. Amar’s justification for the decision is that although the Fourteenth Amendment (the only part of the Constitution that contains an equal protection clause) purports to apply only to the states, it actually binds—by means of a parallel unwritten Constitution—the federal government as well.
AMAR IS TROUBLED by the fact that although Article I of the written Constitution empowers Congress to “raise and support Armies” as well as to “provide and maintain a Navy,” it nowhere states that Congress can create an army. “Raise” seems in context a synonym for “create,” and anyway the necessary and proper clause of Article I would, one would think, authorize the creation of an army, as would—I would have expected him to argue—the Constitution’s preamble. He regards the preamble as a source of constitutional rights, as we will see; and the preamble lists as one purpose of the Constitution “to provide for the common defense.”
But Amar often turns textualist and originalist when he is discussing the written Constitution, as he can afford to do since he has eleven unwritten constitutions to fall back on to reach whatever result his heart or his philosophy tugs him toward. He contends that given the hostility of the Constitution’s framers to standing armies, the phrase “raise ... Armies” may originally just have meant mobilizing the state militias (what now are called collectively the National Guard) temporarily for national service. He thinks the term acquired its modern meaning only with Reconstruction. Congress had created a huge national army to fight the Civil War, and afterward that army (much shrunken of course) occupied the former Confederate states for years. Amar argues that the fact that the national army rather than state militias were assigned to administer Reconstruction “gave the Union Army prominent pride of place over the militia” and by doing so confirmed “the lawfulness today of a national draft, regardless of what the framers may have expected or intended,” because the North had used conscription, though it had been immensely unpopular and fewer than 10 percent of Union soldiers had been conscripts.
Another example of Amar’s pickiness about text concerns the final draft of the Constitution that emerged from the Philadelphia convention. It was a handwritten document signed by a number of the participants, and above their signatures appeared the words “In the Year of Our Lord one thousand seven hundred and Eighty seven.” The draft was then printed and distributed, and some of the printed versions, Amar is relieved to note (relieved because he sees “explicit Christian overtones” in the reference to “our Lord”), omitted the signatures and date and thus “In the Year of Our Lord.” In fact, of the nine states that by voting to ratify the Constitution made it law (Article VII provided that ratification by nine of the thirteen states would suffice to enact the Constitution), five ratified a version that omitted the signatures and the date. This proves to Amar’s satisfaction that “In the Year of Our Lord” is not part of the Constitution and therefore the United States is not a Christian nation.
This is much ado about nothing. The United States today, as in the eighteenth century, uses the Christian calendar, which means counting backward from the year in which Jesus Christ was believed to have been born and forward from that date, the backward dates thus being labeled B.C. and the forward dates A.D., which stands for Anno Domini, which is Latin for “year of the lord.” Having grown up in the 1950s I still write B.C. and A.D. to indicate which era the year belongs to; and I have never thought that by doing so I was commenting on the religious traditions or composition of the American population. Of course one rarely bothers to add A.D. (or its theologically neutral successor, C.E., or “common era”) to a date unless it is unclear which era one is referring to, but it is sometimes added as a flourish in a formal document, and the dating clause in the original Constitution is formal: “done in Convention by the Unanimous Consent of the States present the Seventeenth Day of September in the Year of our Lord one thousand seven hundred and Eighty seven and of the Independence of the United States of America the Twelfth.” Whether this passage is part of the Constitution or not part of the Constitution, it does not retract the provisions of the Constitution (let alone of the Bill of Rights, which did not yet exist) that deal with religion, such as the provision banning religious tests for federal office and the establishment and free exercise clauses of the First Amendment.
WHEN YOU HAVE twelve constitutions to play with, of which only one is a document, you can reach any result you want, and you can say that the result you want is in the Constitution(s), which like the Trinity is at once singular and plural. You put it in, you stir it in a pot called “the implicit meaning of the Constitution as a whole,” and then you pluck it out, congratulating yourself on your “sensitive understanding of America’s unwritten Constitution.”
Amar reads section 5 of the Fourteenth Amendment as authorizing Congress to create new constitutional rights, bypassing the procedures for amending the Constitution. That is not what section 5 says. It says, “The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.” It is about the enforcement of existing rights rather than the creation of new ones. No matter: Amar need not wait for Congress to act, because he regards the Fourteenth Amendment as a cornucopia of unenumerated but binding constitutional rights. “Americans ... should be understood as having given birth to a new constitutional principle, albeit one that did not explicitly appear in the Fourteenth Amendment’s text. Under this new unwritten principle, the federal government would properly enjoy sweeping authority to hold state governments to the highest contemporary standards of democratic inclusiveness.” By which he means today’s standards. The passage I just quoted sounds almost like a joke.
Amar’s penultimate unwritten constitution is a catch-all. It authorizes you—judge or juror—to defy all the other constitutions, beginning with the written one, in the name of conscience. It allows you to say, for example, that Congress has “no power to do improper things.” It allows judges and juries to nullify laws on the basis of conscience alone. It requires that jurors be instructed that they can acquit a criminal defendant even if they think him guilty, if they do not agree with the law or think the punishment excessively harsh; and the judge can do likewise. The Constitution thus can require lawless behavior—a remarkable claim. And finally the “unfinished” constitution (the last of the twelve constitutions) allows the Constitution to be revised root and branch without amending it.
In his preoccupation with his unwritten constitutions, Amar sometimes displays unexpected obtuseness about the written one. I mentioned his misreading of section 5 of the Fourteenth Amendment. He describes the Constitution of 1787 as a “continent-wide ‘Constitution for the United States of America,’” though until the Louisiana Purchase in 1803 the western boundary of the United States was the Mississippi River. He harps incessantly on the Constitution of 1787 as a charter of “popular sovereignty,” a charter adopted by “We the People,” indeed “enacted by the American people,” enacted by “America’s supreme legislature, the people”—”the people themselves ratified the original Constitution and all its textual amendments”—hence a democratic charter. In fact the Constitution was ratified by state conventions rather than by popular vote, and although the delegates were elected, the suffrage was extremely limited. Slaves, Indians, free blacks in the South, women, indentured servants, and propertyless men (except in Pennsylvania) had no right to vote. As a result, probably no more than 10 percent of the adult population could vote for delegates to the state conventions. “We the People” who enacted the Constitution should have read “We the Elite.” And notice the inconsistency between Amar’s regarding the 1787 Constitution as a democratic efflorescence and his regarding the denial of the vote to women until much later as invalidating anti-feminist interpretations of that constitution.
Amar seems oblivious, moreover, to how closely the Constitution of 1787 tracked Britain’s less than democratic eighteenth-century governmental system. Although there are many differences, the U.S. Constitution allocates the traditional powers of the English monarch—such as enforcing the laws, appointing high officials, commanding the armed forces, conducting diplomacy, and pardoning—to the president. It allocates the essential powers of the House of Commons to the House of Representatives, and of the House of Lords to the Senate, and it models the federal judiciary on the British judiciary. Under the Constitution of 1787, only the House of Representatives was to be popularly elected, underscoring the resemblance of the House of Representatives to the House of Commons, and like the House of Commons the suffrage was limited. Senators were to be appointed by state legislatures, and the president and vice president were to be elected not by the “People” but by an electoral college whose members were selected by state legislatures. The Senate was radically malapportioned. Judges were appointed, and for life. All officials of the executive branch, other than the president and vice president, were appointed rather than being elected whether directly or indirectly.
So while the Constitution was republican, it was only quasi-democratic. And because it is so difficult to amend, it can hardly be considered the product of an exercise of popular sovereignty by any people living today, or for that matter any people who reached adulthood after 1787. One might think a book of almost seven hundred pages would at least allude to these points rather than intoning “popular sovereignty” and “We the People” uncritically.
“Here, the people would rule,” says Amar. No: here, as everywhere, a governing class would rule, but the members of the class would be directly or indirectly elected by a fraction of the adult population for fixed terms of office and would thus be competing for popular favor (albeit elite popular favor) and therefore be answerable to public opinion (or at least to elite public opinion). This was an advance over existing political systems, even Britain’s, but popular democracy it was not. Besides the restricted suffrage and a preference for indirect over direct election, the Constitution does not authorize initiatives, referenda, or recalls. The model for the American republic was Rome, not Athens.
ONE GRADUALLY realizes that Amar does not need any of his unwritten constitutions to reach the results he likes, because he reads the written constitution promiscuously. He reads the provision in Article IV that guarantees every state “a Republican Form of Government” to include all the rights thought important in a modern democracy (notably the “bedrock” right to a properly apportioned legislature). He believes that all the rights of criminal defendants can be inferred from either Article III (the article that creates the judicial branch) or the Constitution’s preamble (“We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America”). All that was needed to outlaw the Jim Crow laws, he believes, was the provision in Article I that forbids the federal government and the states to grant “titles of nobility,” because racial discrimination made Southern whites aristocrats in effect. He adds that although the Constitution of 1787 presupposes slavery (for example in the fugitive slave clause), “when read generously, with idealistic attention to both letter and spirit, the original Constitution thus seemed to condemn a legalized racial hierarchy.” (Actually it presupposed it and ratified it.) The idea that the Constitution was a compromise does not enter Amar’s mind. Everything that enlightened modern Americans think good was in the Constitution from the beginning. The eleven unwritten constitutions are just the icing on the cake.
The book ends with a medley of suggestions for constitutional innovation by judges administering the twelve-in-one constitution. The more audacious include allowing prosecutors to appeal acquittals, relaxing the requirement of unanimity in criminal jury trials but requiring juries to deliberate for a minimum of three or more days (depending on the complexity of the case) before reaching a verdict, requiring the president to be directly elected (thus abolishing the electoral college and with it the possibility that a candidate who received fewer votes than his opponent nationwide might still be elected, as happened in 2000), and abandoning (even though the Constitution forbids doing this even by amendment) the provision that each state have two senators.
Amar is an entertaining writer and an imaginative reader of documents and history—too imaginative. He lacks practical experience and an empirical sense. He says, for example, that the rule of “one person, one vote”—that is, requiring that electoral districts have equal population, a judicial interpretation of the Constitution that dates only from the 1960s—”forms the bedrock of the American system of government.” Political scientists continue to debate the effects of the rule. There is no evidence that the effects have been great, or even good. And how can the “bedrock” of a system created in 1787 have been formed almost two hundred years later?
Amar knows a lot about the Constitution, and much of his very long book could be re-worked into a serviceable primer on constitutional law. But in its present form it is not a work of legal analysis. It is the effusion of a visionary and a utopian—of an idolater of the Constitution. The book is unmoored, and stands as a reminder that, as Leon Wieseltier recently wrote, “the mechanical application of ideas to circumstances can be dangerous, and historically amateurish, and lacking in wisdom. It is fanatical, or professorial, to move from a book to a trigger”—in this instance a trigger that could cause a Constitution to explode.
Richard A. Posner is a judge on the U.S. Court of Appeals for the Seventh Circuit and a senior lecturer at the University of Chicago Law School. This article appeared in the November 8, 2012 issue of the magazine under the headline “A Lawyer's Dozen.”