America's Unwritten Constitution: The Precedents and Principles We Live Byby Akhil Reed Amar
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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.
Robert P. George
“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.”
“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.”
“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 importancenot 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.”
“[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.”
“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.”
“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.”
- Basic Books
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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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One of the most inspiring and informative books on the Constitution you will ever read. Everyone who cares about this country and its government should read this.