America's Unwritten Constitution: The Precedents and Principles We Live By [NOOK Book]

Overview


In America’s Unwritten Constitution, esteemed legal scholar Akhil Reed Amar presents an exploration of the various factors that we consider in the course of interpreting the Constitution, but which are not actually enumerated in the written document—and which have never been thoroughly described until now.

With the ratification of the U.S. Constitution, the American people rejected the precedent of the British “Constitution”, a set of ...
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America's Unwritten Constitution: The Precedents and Principles We Live By

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Overview


In America’s Unwritten Constitution, esteemed legal scholar Akhil Reed Amar presents an exploration of the various factors that we consider in the course of interpreting the Constitution, but which are not actually enumerated in the written document—and which have never been thoroughly described until now.

With the ratification of the U.S. Constitution, the American people rejected the precedent of the British “Constitution”, a set of principles and procedures not based on any one foundational document. Instead, Americans chose to create a single text that would serve as the country’s supreme law. But despite its venerated place in our nation’s history, the written Constitution alone is inadequate for directing the American system. At a mere eight thousand words, it does not explicitly provide for every question of legality and justice that arises in practice, nor have its subsequent amendments produced an exhaustive list of the many rights and rules that apply to the country’s lawmakers, judges, and citizens. As Amar explains, the Constitution was purposefully designed to be a terse document, at once comprehensible to ordinary Americans while also being subtly, ingeniously comprehensive.

In America’s Unwritten Constitution, Amar demonstrates how constitutional interpretation depends as much on implicit values, assumptions, and intuitions about justice and governance as it does on the law spelled out in the document itself. In order to understand the written Constitution, Amar argues, we are ironically required to look between its lines—or even beyond it, to precedents set by our Founding Fathers, to common practices both before and after the Constitution was finalized, and to sources like the Federalist papers, William Blackstone’s Commentaries on the Laws of England, the Northwest Ordinance of 1787, Lincoln’s Gettysburg Address, and Martin Luther King, Jr.’s “I Have a Dream” speech. These diverse standards, symbols, and documents—along with historical circumstances, cultural mores, and judicial decisions—form our “unwritten” Constitution. They are extensions of the original document, and indispensible tools for understanding and interpreting the written Constitution.

Amar describes each of these “unwritten” sources in turn, revealing the surprising ways in which they guide interpretation of the Constitution itself. The 8th Amendment, for instance, prohibits “cruel and unusual punishments,” but offers no definition of “cruel and unusual”—freeing judges to assess sentences based on their conformity with dominant practices at the moment of interpretation. Similarly, while Article I, Section 6 of the Constitution safeguards members of Congress from most forms of punishment for “Speech or Debate in either house,” the same holds true for federal judges, whose judicial opinions have historically been protected by the courts despite there being no such assurances in the written Constitution. And it is an unquestioned fact that the president cannot be arrested, imprisoned, or detained while in office—a remarkable guarantee of immunity that is nowhere to be found in the document. Rather, this principle is based on a variety of external factors: arguments in the Federalist papers; ratifying debates and early congressional discussions; and the writings of court justices.

America’s Unwritten Constitution presents a bold new vision of the American constitutional system, one in which proper interpretation of the Constitution rests on the interplay between its written and unwritten manifestations, but in which interpretation does not, and cannot, depend wholly on one form or the other. Neither America’s written Constitution nor its unwritten Constitution stands alone, Amar shows, and with each eye-opening example he develops a deeper, more compelling way of thinking about constitutional law than has ever been put forth before—a methodology that looks past the basic text to reveal the diverse influences, supplements, and possibilities that comprise it.
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Editorial Reviews

The Washington Post
…a masterful, readable book that constitutes one of the best, most creative treatments of the U.S. Constitution in decades…Amar is no stranger to this territory. His past writing credits include America's Constitution: A Biography, which illuminates the text of the nation's most revered document. Now he tackles a more daunting assignment: mapping out the unwritten aspects of our nation's fundamental charter—a task akin to catching the reflection of a mirror. Perhaps better than other any modern-day writer, though, he succeeds in showing how other, less conspicuous sources combine with the written text to hold the Constitution together like a woven fabric. A warning: The book is not for the faint-hearted. At 485 pages of text, it presupposes a keen interest in history, government, politics and law. Yet it is filled with thought-provoking material and fun vignettes, suitable for a wide audience.
—Ken Gormley
The New York Times Book Review
Amar's critics accuse him of fashioning unwritten constitutions to rationalize judges' imposition of liberal outcomes. But the criticism is unfair. He is not the contemporary incarnation of William O. Douglas or William J. Brennan Jr. Often, he believes that properly interpreting the constitution—written and unwritten—yields results at variance with policies he would support as a legislator or voter. That's a sign of integrity in constitutional interpretation.
—Robert P. George
Publishers Weekly
Yale law professor Amar follows his highly regarded historical-textual analysis of America’s Constitution with a companion volume on the history, culture, and legal tenets of the “unwritten constitution,” the traditions and precedents that inform constitutional interpretation. Amar proposes that the unwritten constitution is by necessity on equal grounds with the written one and provides the context for unraveling the many questions the Constitution leaves undetermined. In effect, the unwritten constitution fills the gaps necessary to make the Constitution a working, living document. Among the “documents” Amar cites are the precepts of early English jurisprudence; Supreme Court decisions, including cases that are notorious because they were wrongly decided; and famous speeches, like the Gettysburg Address that presaged the meaning of the equal protection clause of the 14th Amendment. Among the many examples Amar uses to explain the interplay between the written and unwritten Constitution are death penalty jurisprudence, the right to a jury trial, and the establishment clause of the First Amendment. He also examines the constitutionality of special prosecutors, political parties, and filibusters to effectively make his point: the Constitution’s textual limitations and its interpretation require acknowledging the unwritten constitution. Sophisticated readers will be rewarded for traveling with Amar as he covers a great deal of ground. Agents: Glen Hartley and Lynn Chu. (Sept.)
From the Publisher

Washington Post
“In America’s Unwritten Constitution, Akhil Reed Amar aims high and has produced a masterful, readable book that constitutes one of the best, most creative treatments of the U.S. Constitution in decades.… [The book] is filled with thought-provoking material and fun vignettes, suitable for a wide audience…. Amar’s approach is refreshing…. Amar makes a creative case that America’s written Constitution and its unwritten Constitution, since the beginning of the nation, have fit snugly together to form a single, more perfect union.”

Wall Street Journal
“Akhil Reed Amar is a rarity: a progressive law professor who is unafraid of the text of the Constitution…. In his ambitious new book, America’s Unwritten Constitution, he examines the paradox of needing to go beyond the text in order to faithfully follow the text…. His is a ‘holistic’ interpretation, one that rejects reading passages or clauses of the text in isolation from the document as a whole. He is masterfully creative in finding overarching themes that tie the disparate clauses together in novel and sometimes counterintuitive ways…. A highly engaging and thought-provoking book.”

New York Times Book Review
“In America’s Unwritten Constitution, Akhil Reed Amar, a commendably unorthodox and, in some ways, iconoclastic constitutional scholar at Yale Law School, bucks dominant opinions on both sides of the political spectrum. He contends that the written Constitution points to an unwritten one, and he argues that we can interpret with both intellectual honesty and analytical rigor.”

Boston Globe
“The Constitution has been described as both binding law and aspirational treatise…. Akhil Amar, a Yale law professor and one of contemporary America’s most brilliant constitutional scholars, [suggests] in his latest, and best, book, America’s Unwritten Constitution, that the issue is not an ‘either-or’ question…. As a lawyer and constitutional rights activist, I cannot imagine how anybody who cares about the law, and justice, which are not always the same thing, could fail to place this important book at the very top of the must-read list. It’s a gem.”

Commonweal
America’s Unwritten Constitution is full of fascinating history, as well as novel and often persuasive analysis.... An ambitious book, and an impressive one. It tackles many of the most important and controversial issues in constitutional law. Amar’s arguments are uniformly informative and ingenious.... This book demonstrates with force and clarity that the relation between authoritative written texts of the past and conceptions and practices that have developed over time is a central concern not only of religious doctrine but also of secular law.”

The Federal Lawyer
“[An] ambitious work.... Amar’s great contribution is to relate some of the great thematic developments of constitutional history to the words of the Constitution itself.... America’s Unwritten Constitution is not a treatise intended to guide legal practitioners or political scientists. Its aim is the more majestic one of articulating some of the grand underlying themes of American constitutional law and grounding them in the constitutional text. It aspires to be what Thucydides called ‘a possession for all time,’ and it succeeds. Readers today, as well as those of future generations, will read it to their profit.”

Laurence H. Tribe, Carl M. Loeb University Professor and Professor of Constitutional Law, Harvard Law School
“Akhil Amar’s splendid new book, America’s Unwritten Constitution, combines an unmatched eye for detail with a unique capacity for overarching perspective and masterfully elegant synthesis. It is a wonderfully readable companion to Amar’s unparalleled earlier volume, America’s Constitution: A Biography. Together, these two works convey as little else can the majesty and sweep of America’s constitutional project.”

Ken Starr, President of Baylor University; Solicitor General of the United States, 1989-1993; Independent Counsel, 1994-1999
“In America’s Unwritten Constitution, Professor Amar adds to his already masterful bibliography what will instantly become a classic examination of constitutional law. As the Constitution itself stood in need of a seminal biography, so too the vast and varied domain of our Nation’s constitutional law cried out for a guidebook. Professor Amar has now brilliantly provided both.” 

Richard Brookhiser, author of James Madison
“Akhil Amar brings the patience of a historian, the ardor of a lover, and (yes, sometimes) the panache of a conjurer to America’s unwritten Constitution. If you want to argue with him, you will have to summon all these qualities yourself. This is a serious and provocative book.”

Steven G. Calabresi, Class of 1940 Research Professor, Northwestern University School of Law; Co-Founder of the Federalist Society
“This book is brilliant, creative, ambitious, comprehensive, imaginative, and thought-provoking.  It is a must-read for anyone interested in Constitutional Law.” 

Nadine Strossen, Former President, American Civil Liberties Union; Professor, New York Law School
“This is an engrossing, epic work of enduring importance—not only a treasure trove for scholars of American law, history, and politics, but also an inspiring, empowering  guidebook for activists.  It compellingly demonstrates how to harness the Constitution’s full meaning in order to promote its thrilling vision of liberty and justice for all.  No matter what your prior knowledge of this field, and no matter what your ideological perspective, this magnificent book will enhance your understanding and appreciation of our cherished Constitution.  If I had to choose a single work to recommend to either my constitutional law students or my civil libertarian colleagues, this would be it.”

Kirkus Reviews
“[Amar lays] out his argument in case-by-case details that are scholarly and legalistic but always readable…. [An] ingenious mixture of history, legal anecdotes and hypothetical cases.”

Publishers Weekly
“Yale law professor Amar follows his highly regarded historical-textual analysis of America’s Constitution with a companion volume on the history, culture, and legal tenets of the ‘unwritten constitution,’ the traditions and precedents that inform constitutional interpretation…. Sophisticated readers will be rewarded for traveling with Amar as he covers a great deal of ground.”

Booklist
“Deeply researched and carefully argued, this book is nothing less than a sophisticated and comprehensive theory of constitutional jurisprudence that resists being construed along narrow political lines. Indispensable for law students and scholars, this will also be enjoyed by general readers who are passionate about constitutional law.”

Library Journal
Amar (Sterling Professor of Law and Political Science, Yale Univ.; America's Constitution: A Biography) argues that the "unwritten Constitution," consisting of common law, common practice, and judicial procedure, is the foundation of the written U.S. Constitution and is equally important. The book addresses a complex subject, but Amar's introduction, which explains his approach and identifies his sources, states that it is written for general readers. Each chapter discusses these sources at length. The most interesting passages consider influences on the Constitution never anticipated by its framers, such as the women's rights movement; Amar provides detailed coverage of the Nineteenth Amendment as well as two seminal court decisions, Griswold v. Connecticut, which overturned a Connecticut ruling banning the use of birth control and implied a constitutional right to privacy, and Roe v. Wade, which legalized abortion based on this right to privacy. Amar points out that these rights are a natural outgrowth of the Constitution's explicit guarantees. VERDICT Though written for lay readers, this is not a general introduction to the Constitution. Those with previous knowledge of Constitutional law and American politics and history will enjoy it. Undergraduates studying political science will also find it useful. Recommended.—Becky Kennedy, Atlanta-Fulton P.L., GA
Kirkus Reviews
A carefully reasoned defense of the United States Constitution as the foundation--but only the foundation--of our legal system. At a mere 8,000 words, the Constitution can only sketch basic rules for governing America. This hasn't prevented a large group--which includes a few Supreme Court judges--from insisting that it contains within itself a perfect and unchanging legal system. Amar (Law and Political Science/Yale Univ.; America's Constitution: A Biography, 2005) disagrees, laying out his argument in case-by-case details that are scholarly and legalistic but always readable. He emphasizes that much of our unwritten Constitution is written--Supreme Court opinions, presidential proclamations, congressional acts--but that it also encompasses common sense and legal scholarship that aims to decipher a document that contains no instructions on how to interpret its many general statements. Thus, almost everyone believes that the Constitution prohibits anyone in government from limiting freedom of speech, religion and assembly. In fact, the first amendment only prohibits Congress. From the beginning, it was implicit (a terrible word to strict constructionists) that the president, courts and state governments do not get a free pass, but the written Constitution is silent. The Constitution designates the vice-president as president of the Senate: its presiding officer. If impeached, the vice-president could preside over the Senate as it tries his case, acting as both judge and defendant. This is not only absurd, but legal tradition forbids it. If it happened, the Senate would change the arrangements, but the Constitution is no help. A dense but ingenious mixture of history, legal anecdotes and hypothetical cases.
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Product Details

  • ISBN-13: 9780465033096
  • Publisher: Basic Books
  • Publication date: 9/11/2012
  • Sold by: Barnes & Noble
  • Format: eBook
  • Pages: 640
  • Sales rank: 476,384
  • File size: 2 MB

Meet the Author


Akhil Reed Amar is the Sterling Professor of Law and Political Science at Yale University, and also occasionally serves as a visiting professor at Harvard, Stanford, Columbia, and Pepperdine Law Schools. Also a member of the American Academy of Arts and Sciences and a Senior Scholar at the National Constitution Center, Amar has written four books and has contributed to prominent publications such as The New York Times, The Washington Post, The Los Angeles Times, The New Republic, and Slate.com. His last book, America’s Constitution: A Biography, won the Silver Gavel Award from the American Bar Association; his previous book, The Bill of Rights: Creation and Reconstruction, was awarded a Silver Gavel Certificate of Merit from the American Bar Association, as well as a Yale University Press Governor’s Award. Also the winner of a Bator Award from the Federalist Society for Law and Public Policy Studies, Amar is frequently cited by the Supreme Court, and formerly served as a consultant on NBC’s The West Wing.
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Table of Contents

Introduction ix

1 Reading Between the Lines: America's Implicit Constitution 1

2 Heeding the Deed: America's Enacted Constitution 49

3 Hearing the People: America's Lived Constitution 95

4 Confronting Modern Case Law: America's "Warrented" Constitution 139

5 Putting Precedent in Its Place: America's Doctrinal Constitution 201

6 Honoring the Icons: America's Symbolic Constitution 243

7 "Remembering the Ladies": America's Feminist Constitution 277

8 Following Washington's Lead: America's "Georgian" Constitution 307

9 Interpreting Government Practices: America's Institutional Constitution 333

10 Joining the Party: America's Partisan Constitution 389

11 Doing the Right Thing: America's Conscientious Constitution 417

12 Envisioning the Future: America's Unfinished Constitution 449

Afterword 479

Appendix: America's Written Constitution 487

Notes 517

Acknowledgments 597

Illustration Credits 599

Index 601

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