Thursday, December 13, 2012

GWorks Interviews: Akhil Reed Amar

“It turns out that a lot in our constitutional experience isn't written down in so many words.”
In GWorks Interviews: Akhil Reed Amar, Professor Amar discusses his latest book, America’s Unwritten Constitution: The Precedents & Principles We Live By (Basic Books, 2012), and how the text of the Constitution is "supplemented—not supplanted" by an unwritten constitution.

Akhil Reed Amar is Sterling Professor of Law and Political Science at Yale University. He teaches Constitutional Law at Yale College and Yale Law School.

Part One: (Un)written Describing the book, why Professor Amar wrote it and his idea that we can all do Constitutional interpretation.

Part Two: Invitation The Constitution's invitation to understand it and how this relates to issues like privacy and the Supreme Court's review of same-sex marriage.

Part Three: Extent What makes up the unwritten Constitution and how far does it reach.

Part Four: Limit How the unwritten Constitution supplements—but not supplants—the written Constitution.

Part Five: Meaning What the unwritten Constitution means to forming “a more perfect Union.”

GWorks Interviews
Akhil Reed Amar
Part One: (Un)written
Describing the book, why Professor Amar wrote it and
his idea that we can all do Constitutional interpretation.

“It turns out that a lot in our constitutional experience isn't written down in so many words.”

GOVERNINGWorks (GWorks) [00:00:23:25] Why did you write America’s Unwritten Constitution: The Precedents & Principles We Live By?

Akhil Reed Amar (ARA) [00:00:28:25] I wrote the book as a sequel to a book called America’s Constitution: A Biography. That book took the reader through the written Constitution—the Preamble; Articles One, Two and Three—the Legislature, the Executive, the Judiciary; Articles Four, Five, Six and Seven, the rest of the original Constitution; and then the Amendments, beginning with the Bill of Rights and then the Civil War Amendments [the Thirteenth, Fourteenth and Fifteenth Amendments] and then the Progressive Era Amendments from the early Twentieth Century; the mid-Twentieth Century Amendments.

It took a reader basically through the written text from start to finish. It’s designed for a general audience—for someone in AP History or AP Government, an undergraduate or a law student or law professor or a school teacher, someone just interested in Civics.

So, that book came out in 2005. It was called America’s Constitution: A Biography. But it was about the written Constitution. And, it turns out that a lot in our Constitutional experience isn’t written down in so many words. The documents doesn’t say, ‘Limited Government’; ‘Separation of Powers’; ‘Rule of Law’; ‘Checks and Balances.’ It doesn’t even say, ‘the Bill of Rights,’ even though there’s a thing we call ‘the Bill of Rights.’

And when you read the Bill of Rights, it says, ‘Congress shall make no law abridging free speech or freedom of the press.’ It doesn’t say anything about federal courts abridging Free Speech or the President abridging Free Speech. What about when a state abridges Free Speech?

So, this companion volume, America’s Unwritten Constitution: The Precedents & Principles We Live By, is designed to supplement my original book on the written Constitution because together the two books try to map out the entirety of the American Constitutional experience. We have a written text. And it’s supplemented—it’s not supplanted; it’s supplemented—by what I’m calling the unwritten Constitution. 

And the big trick or the question is, ‘How can you go beyond the written Constitution while still being faithful to it?’ In what ways would we an unwritten Constitution that supplements—that fits—that completes the written Constitution and does not betray it?

GWorks [00:03:01:09] What do you hope a reader takes from America’s Unwritten Constitution?

ARA [00:03:06:09] So, my grandest hope is that—I’m trying to pull out my pocket Constitution here; I have many copies but here’s one of them. It’s short. It’s 8000 words, including all the Amendments. You could read it in less than an hour.

But, will you understand it in less than an hour?

This book—this Constitution is not self-interpreting. It doesn’t even tell us completely all the rules by which it should be construed. It doesn’t come with it’s own instruction manual, so to speak.

And, my grandest hope is that a general interest reader, an ambitious High School student in AP History or AP Government, a college undergraduate, a Citizen wanting to know more about America, would read this book,America’s Unwritten Constitution—maybe even would read the previous volume—America’s Constitution: A Biography—and, once having read those two books, she would be able actually not just to understand Constitutional law but to do Constitutional law, to make Constitutional arguments, to evaluate which Constitutional arguments are good and which ones are bad and why.

This thing was short so that ordinary people could read it, so they could decide 225 years ago whether they were for it or against it. And, so it’s not supposed to be like the Tax Code, which is this massive thing that isn’t written for ordinary Americans.

This thing was written for ordinary Americans. But, my thought is that to really be able to use it, to be able to do Constitutional law, you need to know a little more than just the 8000 words. You need to know the tools and techniques of Constitutional interpretation. And those aren’t all written in this little thing called the written Constitution. But, if you’ve read my book, you’ll know the tools and techniques of Constitutional interpretation and you’ll know that often times the words are quite decisive but not always. And, you’ll know ways of approaching the Constitution above and beyond mere literalism.

GWorks [00:05:33:21] As he thought about Special Relativity, Einstein had this image in mind of a boat floating on a river. Do you have an image in mind, is there a paradigm of Constitutional Thinking?

ARA [00:05:42:21] I’m not sure I’m at Einstein’s level of grand unifying theory...yet. And maybe I’ll never get there. But, my big idea in one sentence is that we are all Textualists and we are all Living Constitutionalists. So that Conservatives as well as Liberals believe in an unwritten Constitution. They believe in Federalism. They believe in Limited Government and Checks and Balances and Separation of Powers and the Rule of Law. And none of those words are in the Constitution. And yet Conservatives talk about those things all the time.

So, at a general level, my thought is that this text is what we all have in common. But we also, in addition, all of us, Liberals and Conservatives, have in common ways of going beyond the text. 

All good Constitutional thinkers talk about Precedent, case law. We all are able to read the Constitution as a whole and not just clause by clause. 

If you read clause by clause, where, for example, does it say you can have a Federal Bank or an Air Force, for that matter? It says ‘Armies and Navies’ but not an Air Force. Where does is say ‘one person, one vote’? So...Where does it say that a criminal defendant has a right to take the stand in his own defense? Which it doesn’t in so many words. And yet everyone today thinks that. The Ninth Amendment itself says that there may be unenumerated Rights. That this document is too short to be able to list all the Rights that Americans have.

So, the big, in a nut shell, is that the text itself invites recourse to certain things that aren’t specifically and explicitly itemized in the text. The text itself invites us to go beyond the text in certain ways.

So, that’s as close to Einstein, I think, as I’m ever going to get.

GWorks [00:08:06:23] Is the idea of interpreting literal text with what is unwritten unique or controversial? Is not our history filled with interpretation—of the words of Jesus, for example?

ARA [00:08:13:23] I think there are some interesting parallels to, for example, Biblical interpretation.

Some folks say, Martin Luther, famously, sola scriptura—only the text. And yet he’s interpreting the text from a certain point of view in order to put forth his understanding of the text.

The text consists of words attributed to Jesus. And in some editions, those are actually printed in red letters. But then there are the Early Church’s understanding of the teachings of Jesus. There are the Epistles of St Paul. And then certain texts get put in the Bible and we call that the canon. Certain letters of St Paul get put in the text. Others perhaps not. And then there are the Early Church teachings and traditions and doctrines that emerge. And something similar happens in the Jewish tradition—the Torah and the Midrash, the interpretation…the Talmud and the interpretation of early texts.

There’s also something particularly interesting in the Christian tradition because some of these texts were added later. And we Christians interpret earlier Scriptures in light of later Scriptures. We read the Book of Isaiah through the lens of the life and ministry of Jesus. And so we read Isaiah [7:14] in effect to say ‘a young...a virgin shall give birth’ rather than ‘a young woman shall give birth.’ The Ten Commandments are re-interpreted...which are in the Old Testament...are re-interpreted by Jesus himself in his life and ministry and in his Gospels.

And, in the same way, I suggest, that we read, we Constitutional interpreters, read certain early texts in the Constitution, the Bill of Rights, for example, through the prism of the later Fourteenth Amendment. When the Fourteenth Amendment comes along, it causes us to read the earlier Amendments in a different way—just as the Gospels cause us to read the Book of Isaiah in a different way.

These later texts don’t re-write the earlier ones in any way. But they add to them sequentially. The Amendments are added to the Constitutional text as just so many post-scripts and post-post-scripts. And I think there are some very interesting analogies between Biblical interpretation and Constitutional interpretation.

My first big book on the Constitution is called, The Bill of Rights: Creation & Reconstruction. And Part One was Creation: The Original Bill of Rights and Part Two was how that Bill of Rights should be re-interpreted, was re-constructed by the Fourteenth Amendment after the Civil War. And so, it’s kind of Old Testament-New Testament.

—End of Part One—

GWorks Interviews
Akhil Reed Amar
Part Two: Invitation
The Constitution’s invitation to understand it and how this relates
to issues like privacy and the Supreme Court’s review of same-sex marriage.

“I think the text of the Constitution itself at various key places signals its awareness of the need to go beyond the text in order to complete the text.”

GOVERNINGWorks (GWorks) [00:11:54:13] Does the fact that we have relied on the unwritten in the past mean we should continue to rely on the unwritten now?

Akhil Reed Amar (ARA) [00:11:59:13] So, my book tries to talk about the relationship between the text and the accumulated practices that emerge after the text is adopted. And, where the practices plausibly fit within the text, I show how the practices and text in effect fit together and form a fabric that’s much stronger than the mere text itself, unsupported by actual practice, or mere practice without the guidance of a textual framework.

So, where the text is a plausible interpretation—excuse me, where the practice is a plausible interpretation and implementation of the text, we have something very strong. If the practice ultimately though is not a plausible implementation of the text, the text generally rules. The text is the blueprint and the actual buildings have to fit the blueprint. The blueprint doesn’t specify everything and so there is room for flexibility within the blueprint.

So, let me give you some examples.

Let’s take the Presidency. A lot of things that are absolutely clear about the Presidency are not clear from the text. They are clear from the practices that go all the way back to [President] George Washington.

In the same way that Christians might ask themselves, ‘What would Jesus do? What did Jesus do?’, a Constitutionalist asks ourselves, ‘What would George Washington do? What did George Washington do?’

So, for example, can the President of the United States fire a Cabinet Officer at will?

The answer is, ‘Yes. Of course he can.’

But the text doesn’t say that explicitly. It’s actually unclear from the text whether the President can fire a cabinet officer at will. But, it’s very clear from our practices going all the way back to George Washington. A thing called The Decision of 1789, when Washington and his supporters convinced the first Congress that Presidents had the power to remove Cabinet Officers in whom they’d lost confidence.

Where does it say in the text—and that practice is what has ultimately glossed the text and offered us today the clear rule that guides us today.

The text doesn’t say in so many words that Presidents can negotiate treaties—negotiate them without getting the Senate’s pre-approval. But, Washington did that. And, so Presidents today can do that.

The text doesn’t say really absolutely clearly that Presidents get to decide whether to recognize foreign governments or not. Yet, [President] Barack Obama decided at a certain point to recognize the Libyan rebels. He’ll decide at a certain point perhaps to recognize the Syrian rebels.

And, again, the text isn’t so clear. But, what is clear is that George Washington, 220 years ago, decided at a certain point to recognize the French revolutionaries when Louis...King Louis had lost control.

So, the President’s power to recognize foreign governments, the President’s power to announce American foreign policy. Again, the text doesn’t say that very clearly. But, George Washington issues a neutrality proclamation.

On issue after issue after issue, what matters isn’t the text in isolation but how George Washington began to implement that text—with the approval of Congress and the American People. Early practices and precedents that emerged that in effect gloss the text.

Now, you might say, ‘Well, the text doesn’t mean anything. It’s just the practice.’

No. George Washington did at least one thing that we repudiate today. And we repudiate it because it’s not a plausible interpretation of the text. He goofed.

He, at a certain point, suggested that Americans who violated his neutrality proclamation by giving aid and comfort to European combatants by giving them war ships or joining their military campaigns by becoming mercenaries, that Americans who violated neutrality would be prosecuted. He suggested that.

But, the Constitution’s really clear, that Presidents don’t unilaterally get to make criminal law. Even Presidents and judges, Federal judges, acting on their own, don’t get to make Federal criminal law. Federal criminal laws have to be made by Congress and there’s a procedure. The House [of Representatives] has to pass a law and so does the Senate. And then the President either signs it or it gets adopted over his veto.

So, on that one issue, Washington kind of went too far. He goofed. And his precedent has not been followed.

So, practice is very powerful when it plausibly completes an ambiguous text. But, when the text is clear and the practice is beyond it, we go with the text.

GWorks [00:17:38:17] Necessity is the mother of invention and we sort the rest out after the fact?

ARA [00:17:43:17] Well, a lot of times what...what we’re doing is trying to faithfully apply an ambiguous text. And the thought is that on, for example, Presidential Power, if Presidents have done things that the House and the Senate have actually also accepted, the settlement of those three branches [sic], where the text is ambiguous, in effect gives us the answer. It’s the text plus the institutional settlement of House, Senate and President.

Again, where the text is clear and Presidents and the House and the Senate are going off the page, well, then the text governs.

For many years in the Twentieth Century, Congress has put a thing in statutes called a Legislative Veto. But the Legislative Veto is just completely inconsistent with what the text says and the Court has refused to recognize Legislative Vetoes.

Congress still puts Legislative Vetoes in Bills and Presidents still sign them. But, here’s one interesting point: Presidents signing these Bills have always said, even as they were signing them, ‘This is a big Bill and it’s got some provisions that are really, in my view, unconstitutional. It’s got some Legislative Veto provisions and I think those are unconstitutional. And I do not promise to enforce those provisions.’

So, Legislative Vetoes in fact have never reflected the considered judgment of House, Senate and Presidents. Presidents from Woodrow Wilson all the way throughRonald Reagan and beyond have said, ‘Legislative Vetoes are unconstitutional. Maybe we’re going to sign a big Bill that has it because there are thousands or hundreds of provisions and almost all the provisions make sense and are Constitutional. But, we’re not going to enforce these few Legislative Veto clauses in the law.’

GWorks [00:19:49:24] Does Youngstown provide a paradigm to understand the relation of Constitutional text and the exercise of power?

ARA [00:19:54:24] The Youngstown case [see below] is a very important case in our system. And I haven’t talked as much about courts and where they come into the picture.

But Youngstown is an illustration of the working out of Separation of Powers in action. And theYoungstown judges were very sensitive to what things past Presidents had done with seeming Congressional approval, what were the understandings of the three Branches about the limits of Presidential power.
Youngstown Sheet & Tube v. Sawyer
343 US 579 (1952)
[Editor's Note: The Concurrence in Youngstown by Justice Robert H. Jackson (excerpted below) is perhaps one of the finest, clearest explanations of the relation of governing power to text, institutions and branches by one the Supreme Court’s finest writers.]

“1. When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. In these circumstances, and in these only, may he be said (for what it may be worth) to personify the federal sovereignty. If his act is held unconstitutional under these circumstances, it usually means that the Federal Government, as an undivided whole, lacks power. A seizure executed by the President pursuant to an Act of Congress would be supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack it. 
2. When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least, as a practical matter, enable, if not invite, measures on independent presidential responsibility. In this area, any actual test of power is likely to depend on the imperatives of events and contemporary imponderables, rather than on abstract theories of law.  
3. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.”
Now, that model might not be the only model—isn’t the only model of unwritten Constitutionalism. Youngstown makes particular sense in thinking about Presidential power and issues of structural Constitutional law. It may not be the best way to think about, for example, unenumerated Rights.

So, there’s another chapter on unenumerated Rights. I have a chapter on Feminist Constitutionalism because women weren’t part of the Founding but they actually are part of our experience now. Our Constitution was amended.

How should we think about the fact that, after the Nineteenth Amendment, it seems in retrospect unfair and wrong in a way that women weren’t participating before that? How do we make amends for that fact?
Amendment XIX 
The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of sex.  
Congress shall have power to enforce this article by appropriate legislation.
So, there are many different tools and techniques of unwritten Constitutionalism. Youngstown does talk about a couple of them, in particular how to think about, on a Separation of Powers question, whether the various Branches have themselves established certain patterns and practices that are worthy of judicial respect.

GWorks [00:22:04:06] How does the Constitution invite using external—even unwritten—sources to understand the Constitution?

ARA [00:22:09:06] I think the text of the Constitution itself, at various key places, signals its awareness of the need to go beyond the text in order to complete the text.

I think the most dramatic illustration is the Ninth Amendment which says that listing, the enumeration of certain Rights in the text should not be construed to “deny or disparage” other Rights retained by the People. So, the mere fact that a Right doesn’t exist in a textually listed way is not a sufficient reason for dismissing such a Right.
Amendment IX
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
But, unfortunately, the Ninth Amendment doesn’t…So, apparently, there are Rights that aren’t textual. OK. That’s great. But, the Ninth Amendment doesn’t carefully tell us where to find all those Rights. But, I think it gives us some hints. It says these are Rights of “the people.”

And so one idea is, let’s look to what the People themselves think and say and do find the Rights that the People themselves believe they have. Ordinary people living out their lives in ordinary ways embody a multitude of Rights. 

This is a kind of Burkean thought, that the Constitution doesn’t in so many words say you have a Right to wear a hat or play the fiddle or raise your kids or have a pet dog. But, this is America. Of course you have those Rights and lots more. 

Now that actually suggests a way of cashing out the Ninth Amendment. And, it has counterpart language in theFourteenth Amendment that says, “No state shall make or enforce any law that shall abridge the privileges or immunities of citizens of the United States.”
Amendment XIV, Section 1
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. [Emphasis added]
The Ninth Amendment was about the Federal government. But then the Fourteenth Amendment after the Civil War comes along and says, ‘We don’t want states messing around with Fundamental Rights, either,’ with what it calls the ‘the privileges and immunities of citizens of the United States,’ Fundamental Rights. 

Only one problem: It doesn’t list what those Privileges or Immunities are. It says states can’t mess with them but it doesn’t comprehensively list them. The Ninth Amendment says the feds can’t mess with ‘unenumerated rights’ but it doesn’t comprehensively list them.

But, again, I think there are clues. These are Rights ‘of the people.’ These are Privileges and Immunities ‘of citizens.’

So, here’s what judges should do: Among other things, they should look to the Citizens themselves to see what Rights the Citizens believe they have and embody in their daily practices. They should look to the People themselves.

One way they can do that is just simply by counting, taking account of and taking a count of ordinary, popular practices.

So, for example, the famous 1965 case of Griswold v. Connecticut involves a law that made it a crime for couples, even married couples in the privacy of their own home, even in the privacy of their own home, to use contraception. So, Connecticut actually had made it a crime for even married couples to use contraception, to use it, even in the privacy of their own home. And the Supreme Court invalidated that. And in one of the Opinions, Justice [John Marshall] Harlan[II] in effect says, ‘this is un-American. No other state has ever done anything like that in American history.’
Justice John Marshall Harlan
[Editor's Note: It is Justice Harlan's dissent in Poe v. Ullman to which he refers in his Concurrence in Griswold v. Connecticut.]
[C]onclusive, in my view, is the utter novelty of this enactment. Although the Federal Government and many States have at one time or other had on their books statutes forbidding or regulating the distribution of contraceptives, none, so far as I can find, has made the use of contraceptives a crime. Indeed, a diligent search has revealed that no nation, including several which quite evidently share Connecticut's moral policy,has seen fit to effectuate that policy by the means presented here. 
Though undoubtedly the States are and should be left free to reflect a wide variety of policies, and should be allowed broad scope in experimenting with various means of promoting those policies, I must agree with Mr. Justice Jackson that “There are limits to the extent to which a legislatively represented majority may conduct...experiments at the expense of the dignity and personality” of the individual. In this instance, these limits are, in my view, reached and passed.
He basically counted practices and in a kind of Burkean, traditionalist way looked out at America and said, ‘this is a law that really doesn’t fit our traditions, our customs.’

That’s one way—it’s not the only way—of giving meaning to the Ninth Amendment and the Fourteenth Amendment Privileges or Immunities’ Clause but it’s one way, an important way.

GWorks [00:26:23:21] Does how one interprets the Constitution depend in part on what one looks for? One right versus another? Race versus gender, sexual orientation or age? 

ARA [00:26:30:21] So, let’s talk about different kinds of Rights and different techniques for finding them. And some the Rights are ancient and traditional and some of the Rights are new.

So, one idea is a Right is textually enumerated but the text may be somewhat ambiguous. There is a textually enumerated Right to Equality—and it doesn’t just say racial Equality, it says Equality more generally. Equal Protection is to be enjoyed by all Persons and the first sentence of the Fourteenth Amendment says, in effect, that everyone who’s born in America is born a Citizen. They’re in effect born an equal Citizen. We’re all, in effect, born Equal. We’re all created Equal, to borrow a phrase. 
The Declaration of Independence

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.

And that idea isn’t just limited to race. Yes. We are born Equal, black and white. But, we also are born equal Male and Female. We’re born equal whether we’re born first in the family or third, so the first-born shouldn’t get more legal inheritance rights. Whether we’re born in wedlock or out of wedlock. So, there shouldn’t be discrimination against so-called ‘illegitimate’ children. Whether we’re born gay or straight, if there’s a biological substratum to Sexual Orientation. Whether we’re born Jew or Gentile.

So, there’s an idea of birth Equality. And the text signals that. But, it doesn’t fully flesh out the idea.

And, let’s take Segregation. Is Segregation equal?

Well, it might matter what ordinary people think. And the answer is, Segregation can be Equal but isn’t always Equal. 

Let’s take sex Segregation. We segregate high school gym classes and bathrooms and locker rooms and shower rooms by sex. And that’s generally not seen as unequal today. And one reason it’s not is, I would say, both women and men generally perceive this kind of Segregation as equal, ‘Separate but Equal.’ Both of them do. And, if either sex perceived it as unequal, that would be a good reason for judges to pay close attention to this. 

Now, when it comes to race, separate bathrooms or other facilities that were race segregated have been understood in America as unequal. And even if most whites thought they were equal, it would still matter what blacks thought. OK?

So, for some Rights, maybe we don’t care as much what the minority thinks. But for Equality Rights we do because Equality is all about how both sides are treated along a legal line, whether the line is Race or Sex or whether you make more than $250,000 a year—that’s a legal line—or whether you’re a wage earner or get your income from dividends and rent. The law is full of all sorts of lines of distinctions and it might matter what people on both sides of the line thought—women as well as men, blacks and well as whites.
Amendment IV 
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
So, for, we have to look at what the text says, what word it uses and then pay attention to how that word that word plays out in the world beyond the text. If it uses words like the Ninth and Fourteenth Amendment Privileges and Immunities Clause, they’re saying they’re unenumerated Rights, so there’s not that much text. Just, what Rights to ordinary people think they have. That may be more of a majoritarian test. 

If it uses a word like ‘Equal,’ well, that’s a textually Right and it’s supposed to be Equal but we might pay attention to what blacks as well as whites, women as well as men think. If it uses a word like ‘Reasonable,’ the Fourth Amendment says there should be no ‘unreasonable searches or seizures,’ well that might be again more of a majoritarian test: ‘What do most people think is Reasonable.’ Or you could say, ‘No. Actually, reasonableness incorporates ideas of Equality and other things, so we do have to pay attention to what both sides think.’

How about a phrase like ‘no cruel or unusual punishment’? That seems relatively majoritarian: What practices are usual and what practices are unusual.
Amendment VIII 
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
So, there was a time in America when putting a Seventeen...juvenile offenders to death was common, customary, traditional, wide-spread—not unusual. And then American practices changed and only a few states were left who had the Death Penalty for juvenile offenders. At a certain point, the Death Penalty for juvenile offenders became unusual.

Let’s take the Right of a criminal defendant to testify on his own behalf. The text doesn’t say he has that Right; it’s just not mentioned in the Constitution. At the time the Constitution was adopted, no criminal defendant had such a Right. But, practices changed. States, beginning in the 1850s, began to recognize such a Right. By 1900, almost all states actually did allow a criminal defendant to testify. And, at a certain point, it became a basic unenumerated Right of the People just because it had swept the land, because ordinary people thought they had this Right, were exercising it in court rooms every day across the country, State court rooms as well as Federal court rooms.

So, I’ve given you just in the last few minutes just a whole range of different examples of enumerated and unenumerated Rights and how you might want to ask slightly different questions for each Right: Is it ‘Unusual,’ in the Eighth Amendment context? Is it ‘Reasonable,’ in the Fourth Amendment context? Is it ‘Equal,’ in the context of the Fourteenth Amendment Equal Protection and Equal Citizenship provisions? Or, more generally, for unenumerated Rights, where there isn’t a word like ‘Reasonable,’ ‘Equal,’ ‘Unusual,’ that we’re focused on, in the case of just general unenumerated Rights, is this the sort of thing that ordinary Americans believe themselves to, is this the kind of Right ordinary Americans believe themselves to have and actually do exercise i their daily lives in most places in America?

GWorks [00:33:26:23] How then does the Court assess Gay Marriage? The last election showed unanimous support for it. But a majority of states does not allow it.

ARA [00:33:33:23] Gay Marriage is a really interesting case study.

Here’s the...I think the prediction: There will be a Constitutional Right to Gay Marriage very soon—within the next ten years, I would predict. Because, within the next ten years, Gay Marriage will sweep the land. More than half the states representing more than half of Americans will recognize Gay Marriage. And even if they don’t recognize Gay Marriage solemnized in their own state, they will recognize out-of-state Gay Marriages. So, even if Wyoming doesn’t recognize Gay Marriage, it might say, ‘Yeah. But, if you do to Nevada, you go to New York and get married, we’ll recognize that when you come back to Wyoming.’

When that happens, the Supreme Court I predict will say, ‘This has now become an unenumerated Right.’ And that’s going to happen within the next ten years.

It’s possible to imagine a Court saying, ‘Let’s not wait ten years.’

So the conservative, the actually the most cautious Justice will not...the most cautious Court, excuse me, will probably not wait more than ten years. A more forward-leaning Court might say, ‘The Constitution says ‘Equal.’ This isn’t really Equal. There’s now actually...maybe straights don’t fully understand that it’s not Equal but gays understand that it’s not Equal. And when it comes to Equality, we want to look at both sides of a legal distinction. Gays aren’t allowed to marry. Straights are. How do gays think about it?’ 
Brown v. Board of Education
We conclude that, in the field of public education, the doctrine of “separate but equal” has no place. Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs and others similarly situated for whom the actions have been brought are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment. This disposition makes unnecessary any discussion whether such segregation also violates the Due Process Clause of the Fourteenth Amendment.
In the same way that when it came to Apartheid, the Brown v. Board of Education Court wasn’t interested just in whether whites thought it was Equal. Maybe some of them in good faith thought Segregation was Equal. But it also looked at whether blacks thought it was Equal. And by 1954, let me tell you, most blacks and black leaders were making clear that they did not think that racial Apartheid was really Equal. 

And when it comes to a word like Equal, we have to look at both sides of the equation. 

And Gay Marriage is particularly interesting because I think one big idea is the Equality idea. 

It’s a little complicated because the Equality idea is most strong when it comes to the law distinguishing people on the basis of unequal...distinguishing on the basis of their birth status. Treating them differently, and maybe unfairly or harshly, with disfavor at least, because of how they were born. And people are born black or white, you know, in our social understanding. They’re born male or female. The science is not completely clear, it might be contested about whether one is born gay or straight. It might be...and actually it might be a complex combination of genetic factors, early developmental factors and choice.

—End of Part Two—  

GWorks Interviews
Akhil Reed Amar
Part Three: Extent
What makes up the unwritten Constitution and how far does it reach.
“Over the course of American history, we’ve added lots of Rights but really never taken away Rights. The course of all the Amendments, the trajectory, the vector is increasing Liberty and Equality. Only one Amendment has arguably really cut back on Liberty and Equality (Prohibition). And interestingly it's the one Amendment that didn't take, that itself got overruled by a still later Constitutional Amendment.”
GOVERNINGWorks (GWorks) [00:36:56:22] Are you saying that, with Equality, there is an inherent textual encouragement to look to the minority?

Akhil Reed Amar (ARA) [00:37:03:22] Yes. Equality—that’s a beautiful way of putting it: The word itself invites us to pay attention to what the majority thinks but also to what the minority thinks.

Because, if my wife and I are talking and she’s says, ‘OK. Now we’ know...we are disagreeing.’ You know. And I say, ‘Oh, no. We’re not disagreeing.’ She’s says, ‘Well, if one person thinks you’re disagreeing, then maybe you’re disagreeing. You’re having an argument.’

And, if one side says, ‘It’s not Equal,’ well, that may be enough at least to trigger very careful Judicial Scrutiny to see whether it really is equal or not. The judges are going to have to decide. But, they are going to need to decide with particular sensitivity to both sides of the equation.

GWorks [00:37:53:10] Is there, in addition to a specific textual invitation, also a general Constitutional propulsion toward more not less inclusion?

ARA [00:38:00:10] There are two large trends I think that are at work. 

One: More Rights are OK but not less. The text sets out a whole bunch of Rights. And even if those Rights become unpopular, it doesn’t matter. Those are textual Rights that we’re supposed to enforce unless and until the Constitution is amended. So...but, the Ninth Amendment says, ‘More Rights are OK but not less.’ The Fourteenth Amendment says, ‘There are, in addition to all the textually enumerated Rights, there are these broader maybe unenumerated ‘Privileges or Immunities.’ 

So, there’s one a-symmetry there: More Rights are OK but not less. That’s the deep meaning of the Ninth Amendment and the Fourteenth Amendment.

A second interesting a-symmetry: Over the course of American history, we’ve added lots of Rights but never really taken away Rights. The course of all the Amendments, the trajectory, the vector is increasing Liberty and Equality. 

Only one Amendment has arguably really cut back on Liberty and Equality. And interestingly, it’s the one Amendment that didn’t take, that itself got over-ruled by still a later Constitutional Amendment. That was the Prohibition, the Eighteenth Amendment, which was repealed by the Twenty-first Amendment. 

But with the exception of that, the one Amendment that arguably took back Liberty, constricted it, all our Amendments have really either been about structural issues or have been expansions of Liberty and Equality. You add a Bill of Rights that gave you more Rights than were textually specified before and the Ninth Amendment says, ‘Oh! And there may be lots of other Rights that we haven’t listed and don’t read our listing by negative implication.’ 

And then the Civil War happened and we ended Slavery in the Thirteenth Amendment and promised Civil Equality in the Fourteenth Amendment and Political Equality, equal Voting Rights for blacks, with the Fifteenth Amendment. 

And then, in the Twentieth Century, direct election of Senators, so more Democracy; equal Suffrage for women, the Nineteenth Amendment. In the 1960s, getting rid of Poll Taxes; allowing eighteen-year-olds to vote; being more fair toward DC, which is a largely black city. So, a pretty extraordinary trajectory. Again, a-symmetric.

The last chapter of the book talks about America’s unfinished Constitution, the Constitution still to be written, Amendments that we might add in this generation or that might be added by later generations. And the claim is that certain Amendments would fit the story thus far and others wouldn’t. 

An Amendment criminalizing or prohibiting Gay Marriage wouldn’t fit the trajectory of more Rights. An Amendment allowing Gay Marriage would. That would expand Liberty and Equality. Or an Amendment saying, ‘People who came to the United States at a young age and became naturalized American Citizens should be eligible for President after a certain point.’ That would fit the narrative thus far. Moving to direct election of the President on a theory of one-person-one-vote would probably fit the trajectory thus far. An Amendment criminalizing the burning of the American flag and thereby for the very first time cutting back on the First Amendment, that wouldn’t fit the trajectory thus far.

GWorks [00:41:28:27] What is happening from the Fourteenth Amendment to Plessy v. Ferguson [1896] to Brown v. Board of Education [1954]? From the establishment of Equality to the legitimizing of ‘Separate but Equal’ in matters of race to its “inherent” inequality. Are we unearthing the real Constitution?

ARA [00:41:37:27] So, I have a couple of different chapters on Plessy and Brown. And, in one of my chapters, I talk about America’s ‘Symbolic Constitution.’ 

This short text binds us together. It constitutes us. It makes us Americans. It’s what we have in common. And, I wouldn’t want to loose this even as I am trying to go beyond it, beneath it, behind it. I never want to loose touch with it.
The Gettysburg Address, 19 November 1863
Fourscore and seven years ago our fathers brought forth on this continent a new nation, conceived in liberty and dedicated to the proposition that all men are created equal. Now we are engaged in a great civil war, testing whether that nation or any nation so conceived and so dedicated can long endure. We are met on a great battlefield of that war. We have come to dedicate a portion of that field as a final resting-place for those who here gave their lives that that nation might live. It is altogether fitting and proper that we should do this. But in a larger sense, we cannot dedicate, we cannot consecrate, we cannot hallow this ground. The brave men, living and dead who struggled here have consecrated it far above our poor power to add or detract. The world will little note nor long remember what we say here, but it can never forget what they did here. It is for us the living rather to be dedicated here to the unfinished work which they who fought here have thus far so nobly advanced. It is rather for us to be here dedicated to the great task remaining before us—that from these honored dead we take increased devotion to that cause for which they gave the last full measure of devotion—that we here highly resolve that these dead shall not have died in vain, that this nation under God shall have a new birth of freedom, and that government of the people, by the people, for the people shall not perish from the earth.
But, this isn’t the only text that binds us together as Americans. There are other texts. 

The Declaration of Independence. The Gettysburg Address. Today, in fact, we meet on the 149th Anniversary of the Gettysburg Address, providentially. 

The “I Have A Dream” speech. Brown v. Board of Education is iconic—in the way that The Federalist Papers are iconic.

And so, there are probably as many different theories of Brown v. Board of Education’s rightness as there are law professors and Justices. So, different people have different accounts of why Brown is right. 

And there are certain texts that we all demonize, that we think are basically not what we believe in. Plessy is one of them Dred Scott is another.
Scott v. Sandford60 U.S. 393 (1857) 
The question before us is whether the class of persons described in the plea in abatement compose a portion of this people, and are constituent members of this sovereignty? We think they are not, and that they are not included, and were not intended to be included, under the word "citizens" in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States. On the contrary, they were at that time considered as a subordinate and inferior class of beings who had been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority, and had no rights or privileges but such as those who held the power and the Government might choose to grant them.
So, I have one chapter on Brown and Plessy and America’s Symbolic Constitution. I have another chapter on the role of precedent. Putting the two chapters together, here’s what I say:

I think the Constitution says, ‘Equal.’ Equal means Equal and Plessy was wrong the day it was decided because it wasn’t Equal—Segregation wasn’t; Apartheid wasn’t even in 1896. 

Now, why am I so emphatic about that? How am I so sure I’m not making that up because I happen to live in the Twenty-first Century and I’m just imposing all of my ideas anachronistically on the 1890s?

I’m pretty sure that I’m not making any of that stuff up because John Marshall Harlan, the Elder, Justice on the Supreme Court, says all of that the day Plessy is decided. The day Plessy is decided, he dissents, and he says, ‘I predict that this is going to be another Dred Scott.’ You know, ‘We all know that this is unequal and the Constitution says ‘Equal.’’ 
Plessy v. Ferguson163 U.S. 537 (1896) 
We consider the underlying fallacy of the plaintiff's argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it. The argument necessarily assumes that if, as has been more than once the case and is not unlikely to be so again, the colored race should become the dominant power in the state legislature, and should enact a law in precisely similar terms, it would thereby relegate the white race to an inferior position. We imagine that the white race, at least, would not acquiesce in this assumption. The argument also assumes that social prejudices may be overcome by legislation, and that equal rights cannot be secured to the negro except by an enforced commingling of the two races. We cannot accept this proposition. If the two races are to meet upon terms of social equality, it must be the result of natural affinities, a mutual appreciation of each other's merits, and a voluntary consent of individuals.
So, my theory is Plessy is wrong the day it’s decided. And my theory of precedent is, you don’t follow incorrect precedents a general matter because the Constitution is what trumps. That’s especially true for Rights. We can have more Rights not less. Plessy gave us less Rights than the written Constitution promised and there’s no good excuse for that. 

So, if the Constitution says ‘Equal,’ we follow Equal and Plessy out you go. 

That’s one theory.

Here is now a different account—and that happens to be my account.

In addition to that account, others have said, ‘Well, one other important thing to understand is that by the time of the 1950s, it was way more clear, perhaps, than it had been in the 1890s, that our entire system is really failing to live up to the promises that the Reconstruction generation made to African Americans. By the 1950s, it was clear that there was massive and enduring disfranchisement of blacks in violation of the Fifteenth Amendment. Maybe that wasn’t as obvious to all the Justices in the 1890s, although disfranchisement began actually in the 1870s. 

By the time of Plessy—excuse me, of Brown, it really was clear that black America experienced Apartheid as an insult, as an offense, as a stigmatization, as a mark of their unclean-ness and untouchability. It was just...and maybe there were people in the 1890s, maybe even black leaders, who thought, ‘You know, Apartheid isn’t so good. But, maybe we’re actually better off having the races separate because, if we have them integrated, there maybe will be all sorts of altercations and fights and other things. And blacks will end up being worse off in integrated settings than if we have separate settings. Maybe we’ll be better off actually saying, ‘OK. Separation. But as long as it really is Equal.’ 

And so, you could imagine that attitudes of black Americans may have changed between the time of Plessy and Brown
Plessy v. Ferguson163 U.S. 537 (1896)
Justice Marshall Harlan I, Dissenting 
The white race deems itself to be the dominant race in this country. And so it is in prestige, in achievements, in education, in wealth and in power. So, I doubt not, it will continue to be for all time if it remains true to its great heritage and holds fast to the principles of constitutional liberty. But in view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved. It is therefore to be regretted that this high tribunal, the final expositor of the fundamental law of the land, has reached the conclusion that it is competent for a State to regulate the enjoyment by citizens of their civil rights solely upon the basis of race.
In my opinion, the judgment this day rendered will, in time, prove to be quite as pernicious as the decision made by this tribunal in the Dred Scott Case.

As I said, my view is that Plessy was wrong the day it was decided because [Justice] Harlan seems to be able to see it very clearly that day—and blacks aren’t voting.

—End of Part Three—

GWorks Interviews
Akhil Reed Amar
Part Four: Limit
How the unwritten Constitution supplements—but not supplants—
the written Constitution.
“The unwritten Constitution should never undo the written—it has to fit with the written—it supplements but never supplants. Relatedly, the written Constitution itself says, ‘more Rights are OK. But not less.’”
GOVERNINGWorks (GWorks) [00:46:39:23] How do we understand the limits of the Constitution—written and unwritten? Plessy v. Ferguson and ‘Separate but Equal’ may be wrong as Constitutional law. But, the brutality Plessy legitimized only worsened in the years before Brown v. Board of Education.

Akhil Reed Amar (ARA) [00:46:48:23] In my chapter on precedent, I generally take the position that, if the precedent is clearly wrong, you have to go with the written Constitution, if the precedent is inconsistent with it. I do have a couple of moderating principles. And the Constitution, I think, invites these moderating principles but, once again, doesn’t spell everything out.

I think the Constitution basically says, ‘this Constitution is supreme.’ But, it also talks about Judicial Power and part of Judicial Power is precedent. And it doesn’t quite specify in great detail how to think about the supremacy of this text and the importance of precedent as a feature of Judicial Power that this text in fact provides. 

So, this is a classic example of how the text actually gets us so far but doesn’t get us all the way to a decision.

So, here’s how I think about it. I say, in general, if the precedent is wrong, you have to go with the text because otherwise you could just have a series of accumulating precedents that take us completely away from the core commitments of this [holding up the Constitution]. And that can’t be right.

On the other hand, Judicial Power has always been understood as retrospective; it’s applying to things that have already happened in the world. And one feature of adjudication for more than 200 years, a feature that was true even before the Constitution was adopted, is that courts, especially courts of equity, and the document talks about ‘cases in law and equity,’ can take account of legitimate reliance interests. 

The parties have relied in certain ways on certain previous statements of the law. And, if they’ve organized their lives in certain ways around certain statements of the law, then those aren’t lightly undone by judges. 

And so one important feature of Brown v. Board of Education, someone might remind you, is it didn’t come out of the blue. Plessy basically blessed Apartheid and Apartheid grew and grew and grew, it metastasized. But then, beginning in the early Twentieth Century—someone would say 1914, others would say 1938—but for at least 15 years, a decade and a half before Brown, the Supreme Court was signaling its uneasiness with Plessy. It was beginning to cut back increasingly on Plessy, insisting with ever greater strictness that ‘Separate but Equal’ really had to be actually Equal and eventually in effect signaling that it’s almost never equal. 

‘If, when we look close, we’re not finding equality. And if in case after case after case, beginning especially in 1938, we don’t find Equality, we are signaling to society, to southern society, to Apartheid society, that the days of Plessy are numbered. You can no longer rely on Plessy to organize your affairs as you once did.’

So, Brown doesn’t just come as a bolt from the blue. It actually is attentive to actual reliance interests that had been built up, in part because of the Court’s own mistake in Plessy v. Ferguson.

So, one important feature of adjudication is respect for reliance interests.

Now, I say there is a second reason for going with an incorrect precedent. 

The second reason is, if it’s been blessed by the People themselves, especially if a precedent announced a new right too early and then the People really start to celebrate that right, well maybe, even if that case was wrong when it was decided, because it wasn’t a Right of the People when the first decision came down, but perhaps because of the decision itself, it has become a Right of the People, ordinary people...and that’s consistent with this broader theme that we’ve been talking about: More Rights are sometimes OK but not less Rights. 

Plessy offered less Rights. And that’s not OK. And Brown eventually corrected it. Other cases, arguably they announced Rights a little too early. 

Miranda v. Arizona [385 U.S. 436 (1966)]. You have the right to remain silent.

Today, then, there can be no doubt that the Fifth Amendment privilege is available outside of criminal court proceedings, and serves to protect persons in all settings in which their freedom of action is curtailed in any significant way from being compelled to incriminate themselves. We have concluded that, without proper safeguards, the process of in-custody interrogation of persons suspected or accused of crime contains inherently compelling pressures which work to undermine the individual's will to resist and to compel him to speak where he would not otherwise do so freely. In order to combat these pressures and to permit a full opportunity to exercise the privilege against self-incrimination, the accused must be adequately and effectively apprised of his rights, and the exercise of those rights must be fully honored.

You could think Miranda [v. Arizona] was one of those things. But Miranda today has been fairly widely embraced by our culture. And so, when the Court had the chance to overrule Miranda, it didn’t. The Opinion was written by one Miranda’s bigger critics, William Rehnquist, who at that time was Chief Justice. And he actually said, ‘Gee. Even if Miranda was wrong when it was decided, it’s now basically become part of the fabric. It’s celebrated by ordinary Americans.’ It’s become a Right of the People.
Dickerson v. United States530 U.S. 428 (2000) 
Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture.
GWorks [00:52:02:16] What limits whether and how much We—courts, representatives—import seemingly external social values when interpreting the Constitution?

ARA [00:52:09:16] I think the two limiting principles, which we’ve talked about before, would be the unwritten Constitution should never undo the written. It has to fit with the written—it supplements but never supplants. And where the written Constitution is clear, it generally trumps.

Relatedly, the written Constitution itself says, ‘More Rights are OK but not less.

And so, those are two really important limiting principles. That the unwritten Constitution has to fit with the written in a way, often be invited by the written even though the written doesn’t fully specify the contours of the unwritten. And the written itself, in the Ninth Amendment and the Fourteenth Amendment, says, ‘More Rights are OK but not less.’

—End of Part Four—

GWorks Interviews
Akhil Reed Amar
Part Five: Meaning
What the unwritten Constitution means to forming “a more perfect Union.”
“In the very process of saying, ‘Yes. We accept this document,’ ordinary people said, ‘But, we want a Bill of Rights.’”
GOVERNINGWorks (GWorks) [00:53:02:02] The Framers wrote a Constitution. An unwritten dynamic attends how we understand and effect it. What does this say about our Democratic Self-government?

Akhil Reed Amar (ARA) [00:53:09:02] I’d add one thing above and beyond the fact that the Framers wrote this down and it’s been passed down.

 We have, from the beginning, an extraordinary tradition of Amendments. We’ve made amends. In the very process of saying, ‘Yes. We accept this document. Ordinary people said, ‘But, we want a Bill of Rights,’ which then came along. And then the system almost failed because of its complicity with Slavery and we have to rebuild it after the Civil War with the Thirteen, Fourteenth and Fifteenth Amendments. Women come along and say, ‘What about us?’ And so, they get added to the project.

So, I would say it’s an intergenerational project. 

It begins audaciously 225 years ago: “We the People of the United States do ordain and establish…’ More folks got to vote on this document than had ever got to vote on anything in human history. It begins in an extraordinarily democratic way for its time. Remarkable free speech up and down the continent. For a year, people can speak out in favor of it or against it. No one dies in that year. Compare that to the French Revolution or the American Revolution or what’s happening today in the Middle East and elsewhere. 

So, it begins in an extraordinarily democratic way. But, it’s only the beginning. And then, for the next 225 years, we actually sort of build on it and implement it. Later generations. And we amend it. 

And today, we inherit really three things, I guess: the original text; all the amendatory texts added by subsequent generations; and 225 of implementation, contestation, argumentation, interpretation.

GWorks [00:55:01:19] What are we to understand when the Preamble says forming “a more perfect Union” is why We “do ordain and establish this Constitution”?

ARA [00:55:08:19] The pyramid on the Dollar Bill is unfinished and maybe it will never be finished. It sort of beckons us toward the heavens and it’s very suggestive of an idea that we can build atop a foundation. But, I think that pyramid will always be unfinished. 

The text itself has that same quality to it because we’ve added amendments to the end rather than word processing the thing so it always looks perfect and complete. It looks unfinished. Why 27 Amendments rather than 28 or 29 or 139 for that matter? 

So, yes. This project that began 225 years ago, a project that was more perfect than what preceded it, probably never will get to absolute perfection, that may not be given to human beings. But, it is given to each generation to try to improve upon its inheritance.

Let me actually read you the last sentence of the last chapter of the book—the last paragraph:

If it makes sense for modern American constitutionalists to attend to words written and deeds done centuries ago to form a more perfect union, then it also makes sense for us to struggle to envision and help birth a still more perfect union centuries hence. Much of American history remains to be written, and much of American Constitutional law remains to be framed. 

Faithful constitutionalists thus labor under a two-fold constitutional responsibility. We must look backward in time and claim our constitutional inheritance, and we must also look forward in time and make our constitutional donation. Though this second responsibility does not reside on the clear surface of any explicit constitutional text, surely it forms an integral part of America’s unwritten Constitution.

—End of Part Five—

—End of GWorks Interviews: Akhil Reed Amar—


GWorks Interviews: Akhil Reed Amar was filmed Monday 19 November 2012 at Yale Law School. GWorks would like to thank Professor Amar for his generous participation and Cassie Dendurent Nelson of Basic Books. Please note: At GOVERNINGWorks’s request, Basic Books provided a Reviewer Copy of America’s Unwritten Constitution: The Precedents & Principles We Live By.

Photo: Akhil Reed Amar. Photo credit: Harold Shapiro. Courtesy Basic Books.

Photo: America’s Unwritten Constitution: The Precedents & Principles We Live By. Courtesy Basic Books.

About GWorks Interviews

GWorks Interviews is a series dedicated to exploring governance issues of interest with persons given to thinking about and having relevant experience. GWorks invites a GWorks Interviewee to respond in depth to questions. GWorks does not edit the substance of what an interviewee says. GWorks edits GWorks Interviews only for editorial and technical considerations including style, length and productions issues. For more, please visit GWorks Interviews.