Home > Books, Discourse, Language, Legal > Review of a Review of a Review: On Barnett and Amar on Amar and “America’s Unwritten Constitution”

Review of a Review of a Review: On Barnett and Amar on Amar and “America’s Unwritten Constitution”

September 30, 2012 Leave a comment Go to comments

Professor Randy Barnett is a right-libertarian constitutional scholar who unsuccessfully argued Gonzales v. Raich, 545 U.S. 1 (2005) on behalf of medical marijuana users and unsuccessfully argued Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. ___ (2012) on behalf of the healthcare law challengers,  and who has appeared in these pages before. See here; see also here. Akhil Reed Amar is a leading progressive constitutional scholar who recently published an extensive book entitled America’s Unwritten Constitution: The Precedents and Principles We Live By. Earlier this month, Barnett published a review of Amar’s book in the Wall Street Journal. A few days later, Amar responded at length to Barnett’s review.

As illuminated in the review and the review of the review, the difference between these two hinges on what Barnett sees as Amar’s particular conception of the “living Constitution.” Barnett writes:

Now, it makes some sense to call the meaning that is implicit in the text the “unwritten Constitution.” After all, the implicit meaning is conveyed by what the text expressly says. But by including the judicially created implementing rules under this rubric, Mr. Amar suggests this doctrine is in some way the equivalent of the original, written one, and that this law of the judges can equal if not trump the law of the Founders. This is what living constitutionalism has always been about.

Mr. Amar acknowledges the problem. “Those who venture beyond the written Constitution must understand not only where to start, but also when to stop, and why,” he warns. “The unwritten Constitution should never contradict the plain meaning and central purpose . . . of an express and basic element of the written Constitution.” He adds: “The written Constitution deserves judicial fidelity, both because it is law and because, for all its flaws, it has usually been more just than the justices.” For the same reasons, he agrees that judicial precedent should not be allowed to trump or supersede the original meaning of the text. Where courts have gotten it wrong about the meaning of the text, the meaning—not the precedent—should govern. “A prior erroneous Court ruling does not properly amend the Constitution.” No matter how entrenched Jim Crow laws became after the Supreme Court upheld “separate but equal” in Plessy v. Ferguson, it was right to reverse that decision in Brown v. Board of Education.

This is all good and welcome. But Mr. Amar goes on to advocate an exception that is big enough to drive a living constitution through. “An erroneous precedent that improperly deviates from the written Constitution may in some circumstances stand,” he tells us, “if the precedent is later championed not merely by the court, but also by the people.” “When the citizenry has widely and enthusiastically embraced an erroneous precedent,” the courts may “view this precedent as sufficiently ratified by the American people so as to insulate it from judicial overruling.” When this happens, according to Mr. Amar, the erroneous precedent becomes part of America’s unwritten Constitution.

In other words, if what the judiciary is doing is popular enough, the unwritten Constitution promulgated by judges takes precedence over the written one. Despite the concession made to the written Constitution, this is really no more than a variation of living constitutionalism, one taken even further in the parts of the book where Mr. Amar contends that the unwritten Constitution also consists of numerous historical documents—like the Northwest Ordinance and the Gettysburg Address—along with institutional practices of Congress and the White House.

Amar sets out to refute this charge:

You wrongly suggest that this is my view: “If what the judiciary is doing is popular enough, the unwritten Constitution promulgated by judges takes precedence [according to Amar] over the written one.” I actually say something quite different, and far more nuanced: In the domain of unenumerated rights, popularity counts. Here is one key passage: “While a wave of new legislation would not ordinarily suffice to trump a precise and inflexible textual right, we must keep in mind that in this chapter we have been dealing with various rights that have not been specified in this way in the written Constitution. If the original judicial reason for deeming these rights to be full-fledged constitutional entitlements derived from the fact that American lawmakers generally respected these rights in practice, then such rights should lose their constitutional status if the legislative pattern changes dramatically. In this particular pocket of unwritten constitutionalism [my emphasis] what should ideally emerge is a genuine dialogue among judges, legislators, and ordinary citizens.” And here is another passage: “Thus, if the Court at time T1 gets the Constitution’s text and original understanding wrong and proclaims a right that does not in fact properly exist at time T1, and if the vast majority of Americans come to rejoice in this right, the Court at time T2 should affirm the originally erroneous precedent. The case, though wrong when decided, has become right thanks to an intervening change of fact — broad and deep popular endorsement — that the Constitution’s own text, via the Ninth and Fourteenth Amendments, endows with special significance. Note one key asymmetry: A case that construes a textual constitutional right too narrowly is different from one that construes the right too broadly. Even if both cases come to be widely embraced by the citizenry, only the rights-expanding case interacts with the text of the Ninth and Fourteenth Amendments so as to specially immunize it from subsequent reversal.”

Intelligent, thoughtful scholars like Amar and Barnett bring out the best in each other, or close to it, because they are willing to engage with each other and have an exchange that both sharpens the distinctions between the two and draws each to develop and defend his views. In this case, Amar has advanced an intriguing and creative constitutional notion. Barnett challenged it, and Amar’s response further defined the concept.

Perhaps it ultimately is too simplistic, but even high-minded conservative constitutional defenders like Barnett seem to forget a basic, mechanical objection to expansive constitutional approaches like Amar’s: they are undemocratic. Functionally, what the host of progressive, “living Constitution,” dynamic, “unwritten Constitution,” etc. approaches seek is a shortcut to or a circumvention of the constitutionally prescribed amendment process, the dangers of which should be self-evident. There probably is a reason that scholars in Barnett’s position do not rely on this fundamental objection– to which Amar’s vague appeal to the Ninth and Fourteenth Amendments looks like a grasping rejoinder– but it escapes me, especially because there does not seem to be an equally compelling response available to those in Amar’s position. (Note also that Amar’s qualification, that only those extra-Constitutional interpretations that expand rights are authoritative, is irrelevant in the face of a Federalist approach to liberty under the Constitution, in addition to being non-responsive to the fundamental, mechanical objection mentioned in this paragraph.)

Categories: Books, Discourse, Language, Legal
  1. peter
    October 1, 2012 at 12:47 pm

    I like your additions on the amendment processes. I would be curious if either of them mentioned it in a different portion of their texts.

    I do worry though any time someone writes about the scope of the Constitution [or certain clauses therein]. Perhaps constitutional scholars can discuss the document and its consequences purely as they stand, but it occurs to me that most of the rest of us have a difficulty to do so. As I was reading each of their viewpoints, my overarching thought was: “to what specific topic are they referring to?”

    It brings back a story of a certain government teacher who claimed – nay insisted – that the civil war was fought primarily on the grounds of states rights and that slavery merely represented a cultural difference to help draw the boundary lines. My point that the various personal liberty laws in direct and clear violation of the Fugitive Slave Act of 1850 was an example of a handful of northern states attempting to [possibly] over reach their states’ rights in an attempt to combat slavery fell on deaf ears. I may have a theory why her opinions were so skewed [her childhood came out of the deep south]. In any case, slavery certainly should exist as a possible explanation of the civil war [along with states’ rights of course] and any denial that adamant seems to reflect personal motivation more than an accurate analysis of the facts.

    I’m not smart enough to attempt to decipher what the two mentioned authors were discussing and, as I suggested earlier, they may well be able to make claims independent of personal histories or beliefs. I always worry that people may pick sides on such a discussion based solely on his/her opinion on civil rights legislation, the current gay marriage situation, etc. more than an honest attempt to understand the Constitution and how it “should” [with should being the operative word in all this] apply to today.

    • AD
      October 1, 2012 at 1:29 pm

      Thank you for your comment. If you click the links in the last two sentences of the first paragraph of this post, you can read the two excerpted pieces in full. If you do that, you’ll find that Professor Barnett charges Professor Amar with the very concern you raise. He writes:

      “Where Mr. Amar cannot make the written Constitution say what he wants, he can simply appeal to the unwritten Constitution to say the rest. And, judging from this book, the unwritten Constitution just happens to agree with everything Akhil Reed Amar believes is right and good.”

      I alluded to Amar’s response in the last paragraph of my post, but it actually makes up the bulk of his reply to Barnett such that you’re best off just clicking through and reading it.

      (Again, if you do, you also will note that neither addressed the point I raise, which of course was the point of my writing this post.)

      Your point about the meaning and significance of historical events is well taken, but that isn’t what’s directly at stake here, because a different mode of analysis applies when we’re talking about something like the Constitution– a legally binding text– as opposed to ascribing meaning to a historical event. A different mode of analysis applies, in part, because interpreting the former has legal consequences that interpreting the latter does not.

      Finally, as to the notion of honesty in scholarship, I agree that it’s important as a matter of personal and professional integrity. I would add that, absent an unexplained change in position, it’s difficult to evaluate the genuineness of scholarly honesty.

  2. AD
    October 9, 2012 at 11:24 am

    When it comes to matters of interpretation, I should know better than to weigh in before I’ve considered Stanley Fish‘s view. Thankfully, reader jjm forwarded Fish’s review of Professor Amar’s book, discussed in the main post above, this morning. Here’s Fish’s parting shot:

    “What are the implications of Amar’s argument? Well, one implication, which he draws out, is that textualism or clause-bound literalism of the kind championed by Justice Antonin Scalia is a nonstarter. Not going outside the text leaves the text a document profoundly unresponsive to our goals and aspirations because our goals and aspirations — the huge number of unwritten ones — have been edited out. Another implication, one that Amar does not draw out because he is not performing as a philosopher of language, is that we have unwritten constitutions in every area of our discursive life. Whether it is the law, or higher education, or politics, or shop talk, or domestic interactions, utterances and writings are meaningful only against the background of a set of assumptions they do not contain. Textualism is not only a nonstarter in constitutional interpretation; it is a nonstarter everywhere.

    “When your spouse or partner says, ‘We don’t go out anymore,’ what does he or she mean? Well, it depends on within which unwritten constitution — which understanding of the protocols and hazards of the domestic project — you are hearing the words. Parsing them lexically and grammatically isn’t going to help you. What might help — or at least put you in the ballpark — is a sensitivity to everything that has happened in the course of a continuing relationship. The last thing you want to do in a situation like this is be a clause-bound literalist and start researching the number of days the two of you have gone out. That’s not what is at stake and you will have a chance of knowing what is at stake only if, as you listen to the words, you are hearkening to the unwritten constitution of your life together.”

    The full review is at http://opinionator.blogs.nytimes.com/2012/10/08/is-there-a-constitution-in-this-text/?hp.

    Having read Fish and heard him speak twice before, I have a pretty good idea of what to expect from him. See, e.g., here. His response to Amar– largely a sympathetic one– is more mechanical, or more fundamental, maybe, than Professor Barnett’s. Fish generally is concerned with the very act of interpretation, the process by which we internally translate the shapes we call letters into meaning.

    A potential problem with Fish’s critique of textualism is that it seems to ignore Fish’s own premise, which I ineloquently understand to be that words don’t contain inherent meaning, and that each reader, by approaching a text with all of his or her experiences, assumptions, preferences, and biases, necessarily engages in extratextual interpretation in supplying meaning to and deriving meaning from that text. Fish’s critique of textualism appears to be irrelevant in light of his premise because if his premise is true, then a textualist is incapable of ignoring “assumptions [the text] does not contain.” Textualism as Fish describes it is not merely rejected, it isn’t even an option because it isn’t possible.

    This first-level critique leaves Fish vulnerable to a second-level, pragmatic, aspirational response from textualists: even if a strict textual approach to interpretation isn’t actually possible (i.e., accepting Fish’s premise), we should still strive for it because it’s the best ideal approach. Fish (and Amar) might reply that this is no response at all, because if interpreters are incorporating extratextual assumptions into their interpretive process, they ought to acknowledge that and have a broader discussion about those assumptions. I actually am not sure that Fish or Amar would agree with that last sentence, but I do believe that this is where the real debate currently exists, rather than what’s described in the previous paragraph.

    Finally and more broadly, it bears repeating that textualism is something of a straw man for proponents of more dynamic interpretive approaches like Fish and Amar because, in the legal context (see my above comment on why the legal context is a meaningfully distinct one, something I think Fish also bypasses), textualism is but a tool used by their perceived ideological opponents, who are engaged in a broader approach known as originalism. Originalism, currently more fully stated as “original public meaning” originalism, is very open about its incorporation of extratextual meaning. A full discussion of it also is beyond the scope of this comment. When critics tilt at “textualism” (and, invariably, Justice Scalia, surely an imperfect vehicle for “conservative” interpretive approaches) in the legal context, though, they likely are missing the mark of a more meaty and meaningful discussion.

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