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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...
- Sales Rank: #319820 in eBooks
- Published on: 2012-09-11
- Released on: 2012-09-11
- Format: Kindle eBook
Review
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.”
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.”
“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.”
About the Author
Akhil Reed Amar is Sterling Professor of Law and Political Science at Yale University, and periodically serves as a visiting professor at Harvard, Columbia, and Pepperdine Law Schools. Amar is the author of four books, including America’s Constitution, which won the Silver Gavel Award from the American Bar Association, and The Bill of Rights, which was awarded a Silver Gavel Certificate of Merit. A member of the American Academy of Arts and Sciences and a Senior Scholar at the National Constitution Center, Amar is often cited by the Supreme Court and is a frequent expert witness in Congressional hearings.
Most helpful customer reviews
86 of 91 people found the following review helpful.
Another Sterling Performance from Prof. Amar
By Fakey McFakename
I just received this book - two weeks before it is officially released. I'm not entirely sure how that is possible, but congratulations to Amazon for its efficiency.
As a Yale Law student, the temptation to buy this book was overwhelming. And it hasn't disappointed: as one would expect from Akhil Amar, the writing is lucid; the arguments are powerful (even when one might not entirely agree with them); and the level of scholarly detail astounding. I have no doubt that this book will take its place in the canon of Constitutional scholarship, and every law student, attorney, and judge should put this at the top of their reading list.
Amar is known for holding a few positions outside the mainstream, and this book is no exception. Like in America's Constitution: A Biography, readers will occasionally find, particularly near the end of a chapter, some claims that may lead them to raise an eyebrow. But even these deserve a careful read, and from time to time, the reader will be convinced. Even when they are not, hearing Amar's intelligent arguments will remind them of the necessity of not blindly following the mainstream and making one's mind up for oneself, based on all the evidence and logic.
Some arguments in this book are of enormous importance. Amar's call to remember the Common Law and revolutionary experience that colors the words used in the concise text of the Constitution serves as an important reminder to modern judges to avoid the temptation to construe language in a vacuum; like all forms of communication, it is vital to recall that the meaning of language is a product of social and historical context. Similarly, Amar's reminders that, even when a broad principle is enumerated in the Constitutional text, advances in understanding may lead it to be applied differently to how the Drafters may have expected resemble the 'New Textualist' and 'Living Originalist' (see: Living Originalism) schools that have done so much to ground rights 'discovered' recently in sound constitutional theory.
Nonetheless, one cannot accept what Amar says uncritically. Unless I have missed it, he fails to address recent revisionist arguments against the traditional identification of the early 20th Century as 'the Lochner era' (see, e.g., Rehabilitating Lochner: Defending Individual Rights against Progressive Reform). Whatever one thinks about whether these arguments have merit, they deserve a response. While Amar properly criticizes the majority opinion in Roe v. Wade for its singular unwillingness to explain how it found a right to abortion that contradicted the laws of every State, his proposed alternative basis - that these laws that specially affected women were invariably first enacted by all-male legislatures - is almost perverse in its tendency to ignore the fact that such laws are generally created not out of any evil desire to subjugate women (even if some - presumably including Amar - might say that was their effect), but out of a sincere belief that a child's life is terminated. Nor, as far as I can tell, does Amar discuss whether Roe could survive if a legislature in which women were properly represented decided to limit access to abortion. Again - whatever one thinks of abortion and Roe, Amar's argument has notable omissions.
Despite these caveats, and the disagreements many (if not most) readers will have with some of Amar's positions (inevitable for a book that comments on so many controversial legal and political issues), this book clearly deserves five stars. Overall, it is an excellent work of scholarship - and like all such works, it should not be read uncritically. But disagreeing with an argument in the book is part of the fun of reading it.
26 of 26 people found the following review helpful.
Insights on Every Page
By Eclecticism
Like another reviewer here, I bought this Kindle book on the strength of Akhil Reed Amar's other book, "America's Constitution: A Biography." Er, no problem with the use of "America" in either of these titles. These two books really should be read sequentially, starting with Biography. In Biography, Reed goes word for word through the "terse text." In Unwritten, he shows how the various Constitutions -- implicit, lived, symbolic, etc. -- flesh out and strengthen the words of the document itself.
While reading this book I was mulling the thought of subtracting a star due to a tendency of the author to get a little too far down in the weeds. And then I came to Chapter 6, "Honoring the Icons: America's Symbolic Constitution." This chapter examines six texts -- no spoilers here but at least one of them will surprise you -- that illustrate not just the Constitution but what it means to be an American. Another part of this chapter -- on the three Supreme Court cases that deserve to be in the SCOTUS Hall of Shame (my words, not his) is similarly insightful. This chapter is worth being issued as a Kindle-single edition.
Akhil Reed Amar's writing throughout is lawyerly but elegant (check out the Look Inside feature to confirm). The book is written for a layperson, not a lawyer, with ample, clear definitions of important terms. Yes, Amar should be on the Supreme Court. Maybe he's been asked, but why would he give up a tenured gig at Yale to come down to Washington, even if a seat on the Supreme Court is tenured as well?
Buy both of these books and read them carefully. You will emerge with a greater understanding of the document and our society. And speaking of Biography, I've given my hard-copy version to a friend and replacing it with the Kindle version. Both books deserve re-reading.
5 of 6 people found the following review helpful.
Why Unwritten Law Is So Important In America
By John A. Hunt, Attorney, Las Vegas, Nevada
Akhil Reed Amar, a professor of law at Yale Law School who is well known as a legal scholar and expert on constitutional law, impressed me when I read his scholarly treatise on the Bill of Rights but I am even more enamored after completing “America's Unwritten Constitution: The Precedents and Principles We Live By.” In this book Amar delves into and explains why there are so many legal constitutional precedents now set in stone that are not actually enumerated in the Constitution.
Containing only 8,000 words, the U.S. Constitution cannot possibly explicitly provide for every issue faced by our nation down through the years to this present day. Yet, argues Amar, America’s written constitution and unwritten Constitution fit snugly together to create this grand body of laws that guides our nation through its grand history. The author’s call to pay attention to common law and historical context is a solid reminder that legal opinions cannot be written in a vacuum. The author’s lawyerly but elegant style helps all readers understand how our Unwritten Constitution came to be and how important it is to all citizens.
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