An open letter to Professors Paulsen and Powell.

• Author: Amar, Akhil Reed
• Position: Response to article by Michael Stokes Paulsen and H. Jefferson Powell in this issue, p. 2037, 2067

Dear Mike and Jeff,

A book is an open invitation to a conversation between an author and his (or her) readers, and I am delighted that you both have accepted the invitation that I sought to extend in America's Constitution: A Biography. I recall many face-to-face conversations with each of you when we were all students together at the Yale Law School in the early 1980s. I learned a great deal from you at that time; I have continued to learn a great deal from you in print since then--indeed, you are both repeatedly cited with approval in my book; and I look forward to learning more from each of you in the days to come as the conversation that we have begun in this Journal ripens into what I hope will be additional, more informal, discussions among us.

Mike, I have only two quick things to say in response to your very warm review.

First, thank you. Thank you for your enthusiasm and encouragement, and most of all for your generosity of spirit. (Perhaps all that time you spent trying to set me straight in law school was not wasted after all.) Since you raise the question of whether your glowing review might be thought by some to be strongly colored by our long friendship, it may be worth noting (though it is immodest of me to do so) that several other leading reviews, written by eminent lawyers and historians whom I know much less well, have been similarly glowing--much closer to your bottom line than to Jeff's. (1)

Second, stay tuned. You raise important questions about a couple of suggestive but underdeveloped paragraphs that I penned on the Ninth Amendment. I hope to revisit this issue in greater detail in what will be a sequel of sorts, tentatively entitled America's Unwritten Constitution: Between the Lines and Beyond the Text. (2) The challenge, as I see it, is to take seriously unenumerated aspects of our constitutional tradition and practice but to do so in a way that does not undermine the preeminent virtues of a written constitution. Perhaps this cannot be done. Perhaps I am questing for a square circle. But as John Ely famously reminded us all in Democracy and Distrust, at critical moments the document itself does seem to gesture beyond its own four corners; and I aim to take seriously the gestures of both the Ninth Amendment and the Privileges or Immunities Clause. I hope to do so in a way that leads directly away from Dred Scott--not toward it, as you fear. As you note, my book sharply criticizes Taney's disgraceful opinion on originalist grounds. In my view, Taney's outlandish and outrageous conclusion that federal free soil laws were generally unconstitutional could in no way have been justified by honest reference to my proposed benchmarks for unenumerated rights--namely, "the great mass of state constitutions," "widely celebrated lived traditions," and "broadly inclusive political reform movements." (3) The majority of state constitutions in 1857 were themselves free soil; the actual lived tradition in antebellum America was of various federal free soil laws stretching uninterruptedly back to the Northwest Ordinance passed by the very first Congress; and slavocrats in the Deep South could hardly be reckoned a broadly inclusive movement given the massive political exclusions in the South--of slaves, of free blacks, and of antislavery whites.

In my hoped-for sequel, I also aspire to think carefully about the role of judicial case law and stare decisis. I see a somewhat larger role for stare decisis than do you, but like you I believe that ultimately the doctrine should be subordinate to the text, enactment history, and structure of the document itself, and its grand theme of popular sovereignty. (4)

Jeff, you raise more questions for me (and about me) and so I owe you more answers. I appreciate that space constraints limited your ability to flesh out all your reservations about my recent book (and about some of my earlier work), so I hope that the conversation between us begun in this Journal can continue outside it. Like you, I shall confine myself here to a few exemplary points rather than trying to cover everything that you say.

For starters, you raise questions about my general interpretive methodology. I have tried to explain and exemplify my preferred method elsewhere--most elaborately in a couple of articles that appeared in the Harvard Law Review. (5) Readers of this Journal can also get a sense of my overall approach from the other pieces in this Colloquium. You are right to call me a constitutional textualist, (6) but I also fancy myself a constitutional structuralist and a historian of original meaning. Generally, I seek to braid together arguments from text, (enactment) history, and structure into a satisfying account of the document itself as distinct from much later case law interpreting the document, sometimes quite loosely. You wonder whether my approach mixes apples and oranges. I can only say that (1) if I do, there are times when mixture is appropriate (consider for example the fruit salad); and (2) there are many distinguished constitutional scholars and practitioners--liberals and conservatives, on the bench and off--who are roughly in the same methodological camp as am I (consider for example Hugo Black, John Hart Ely, Doug Laycock, and Steve Calabresi). (7)

You also pose pointed questions about whether I am a proper historian. (8) You are right that ultimately I am concerned with legal meaning. But legal meaning may of course pivot on certain historical facts. For example, on the question of the legal permissibility of secession, I think it hugely relevant that leading Federalists in leading places during the ratification process explicitly said that the new system would be indivisible; that no prominent Federalist ever said otherwise (even though this made it much harder to convince states' rightists and fence-sitters to vote yes); and that in the New York ratifying convention, the secession issue arose in a highly visible way and was resolved by...