On February 25th, Harvard students welcomed Professor Akhil Reed Amar, Sterling Professor of Law and Political Science at Yale Law School. Professor Amar gave students a preview of his most recent book, “America’s Unwritten Constitution: The Precedents and Principles We Live By,” which he hopes will change the way people think about the world and give them a reason to believe in the power of ideas. Prof. Amar reminded students that many of the people who have left a prominent mark on the world were trained lawyers, such as Gandhi and Lincoln. It requires great discipline and training to wield words in the service of liberty, equality, and justice.
There were three themes prominent in Prof. Amar’s speech. First, the written Constitution deserves our attention and allegiance. It is not quite the document some think it is, and liberals need to own it and claim it once they have a better understanding of it. Second, we will have to understand how to go beyond the written constitution without losing connection to it. Third, we are all textualists and living constitutionalists.
Prof. Amar believes that the Constitution is pretty obviously the rightful inheritance of liberals, and emphasized that it is in fact far more egalitarian and liberal than we have been taught. 95% of the Constitution’s content comes from four historical moments: the era of the Revolution; the Civil War and Reconstruction; the Progressive Era; and the 1960’s. All four were moments of genuine liberal reform. In the Revolutionary War, we took arms against the most powerful monarchy in defense of the idea that all men are created equal. Before the Constitution, self-government really did not exist anywhere else in the world; now democracy exists prominently all over the planet, and all because “We the People” “did ordain and establish a Constitution.” He disavowed the idea that the Constitution should be judged by 2014 standards, noting that at the time of ratification it gave more people the right to vote than ever before. It was a “national, egalitarian, liberal project for its time.” The amendments embodied in later historical moments were equally revolutionary changes.
Perhaps unexpectedly, Prof. Amar advised students to be more originalist than they have been taught is politically correct. In his mind, the greatest originalist scholar is not Justice Scalia, Justice Thomas, or Robert Bork, but Justice Hugo Black, who was President Franklin Delano Roosevelt’s first (liberal) appointment to the Court. He argued that Black was the driving intellectual force on the Warren Court, which collectively made decisions that were faithful to the Constitution, holding that “free speech means free speech” (Bridges v. California), “equal really does mean equal” (Brown v. Board of Education), and that we should have religious equality. Prof. Amar admires Justice Black for owning the Constitution and for knowing the text forwards and backwards. He also suggested that students look to Justice Joseph Story, who had a broad vision of the Constitution, as a role model.
Prof. Amar believes that we are all textualists, we are all originalists (of a sort), and we are all living constitutionalists. His closing remarks focused on the importance of reading the Constitution as a whole, not clause-by-clause. This is especially important because the Constitution is silent on principles such as separation of powers, federalism, and rule of law. So how can interpreters go beyond the text without losing what is valuable? This is where his idea of an unwritten constitution comes into play. When the text is ambiguous, looking at things like the gloss of history, precedent, governmental practices, or institutional customs is important. Prof. Amar’s book, “America’s Unwritten Constitution,” discusses various tools and techniques to construe the Constitution while remaining faithful to it.