America's Unwritten Constitution

Review by Sanford Levinson

Any list of the most creative thinkers about the United States Constitution would definitely include Yale law professor Akhil Reed Amar. His previous book was America’s Constitution: A Biography, a classic overview of almost all facets of the written Constitution. The adjective is crucial, for his new book elaborates a complementary Constitution, albeit unwritten, that is essential to grasping the full set of constitutional understandings that structure the American polity. “America’s unwritten Constitution and American’s written Constitution fit together to form a single system.” The book, therefore, is devoted to eliciting the set of unwritten norms that must be understood by anyone trying truly to understand that system.

Separate chapters focus on such subjects as “implicit principles”; what can be learned from the very process by which the Constitution was debated and ratified in 1787-88 (such as the crucial importance of majority rule); the “lived customs” of the American people; the “unifying symbols: of America, such as the Declaration of Independence, the Gettysburg Address; and Martin Luther King’s ‘I Have a Dream’ speech; seminal Supreme Court decisions, such as Brown v. Board of Education; and American state constitutions. Each chapter provides illumination and, with some regularity, provocation. Political liberals, for example, will surely appreciate his paeans to the importance of equality and inclusion; they are less likely to support his unrelenting criticism of the Warren Court’s adoption of so-called “exclusionary rules” by which, as Justice Cardozo once put it, “the criminal goes free because the constable blundered” by conducting an illegal search or seizure. Always on display is a vigorous, absolutely independent, mind drawing on more than a quarter-century of deep thinking, teaching, and writing about the Constitution(s).

A running theme of Amar’s work is the ability of all Americans, and not simply judges or law professors, to participate in the conversation about constitutional meaning. Though it will no doubt occasion much discussion within the legal academy, its intended readers go far beyond that parochial setting. This aim is reflected in the graceful and accessible prose of the volume. But he also, for example, devotes part of his chapter on criminal law to arguing on behalf of informing jurors that they have a constitutional right to interpose their own consciences against prosecutors and judges and thus in effect to nullify certain laws that are being brought to bear against criminal defendants. (One can be confident that this will not generate approval by American judges, among others.)

Amar is an unabashed admirer of the Constitution(s), written and unwritten. He is, perhaps, the Constitution’s Walt Whitman, singing its praises (though with occasional criticisms, as with the electoral college) for a united people. As I elaborate in my own book, Framed: America’s 51 Constitutions and the Crisis of Governance, I do not share his admiration. From my perspective, he, like most lovers, is blind to the faults of his beloved. Still, it is hard even for me not to be inspired (as well as provoked) by some of Amar’s songs of the Constitution. It deserves wide readership and discussion.