Saving Originalism

AuthorDelahunty, Robert J

SAVING ORIGINALISM

AMERICA'S UNWRITTEN CONSTITUTION: THE PRECEDENTS AND PRINCIPLES WE LIVE BY. By Akhil Reed Amar. New York: Basic Books. 2012. Pp. xvi, 483. $29.99.

INTRODUCTION

It is sometimes said that biographers cannot help but come to admire, even love, their subjects. And that adage seems to ring true of Professor Amar,1 the foremost "biographer" of the Constitution. He loves it not just as a governing structure, or a political system, but as a document. He loves the Constitution in the same way that a fan of English literature might treasure Milton's Paradise Lost or Shakespeare's Macbeth. He loves the Constitution not just for the good: the separation of powers, federalism, and the Bill of Rights. He also loves it for its nooks and crannies, idiosyncrasies, funny phrasing, and odd language.

Amar's earlier book, America's Constitution: A Biography,2 displayed his contagious enthusiasm for the Constitution and its history. Postmodern theories, the Frankfurt School, or economic determinism did not make an appearance in his holistic interpretation of the Constitution. But like many a biographer, Amar cannot admire his subject if it has great faults. Some biographers fail because their admiration overwhelms their objectivity, and they tend to minimize or ignore serious personal flaws. Amar, however, is too honest to ignore his subject's blemishes. He is faced with the quandary of an imperfect Constitution.

His answer is to bend, pull, and stretch the original into a better form- a constitutional photoshop for the twenty-first century. Amar appears to get cold feet in the face of "the unhappy truth that not every problem was meant to be solved by the United States Constitution, nor can be."3 Readers must judge whether his quest for perfection has overwritten, if not erased, the original image. In this sequel, America's Unwritten Constitution: The Precedents and Principles We Live By, Amar tries to save the object of his affection from the success of Biography.

Amar's method, however, yields conclusions that many leading constitutional law scholars would find unacceptable. Under a strict originalist approach, the Fourteenth Amendment does not appear to prohibit segregation by gender. Critics like David Strauss argue that originalism would permit racial segregation by the federal government, and perhaps by the states too, and would not have incorporated the Bill of Rights against the states.4 An original Constitution might not provide for a right to privacy or recognize a woman's right to an abortion. It could reject parts of the large federal administrative state in areas such as the environment and labor, and it could restrict the scope of freedom of speech, including core political speech. It may well be that textualism and originalism, properly applied, do not produce these outcomes, but most constitutional law scholars appear to believe that the framers' Constitution is doomed by these interpretive methods.

Amar loves the Constitution so much that he cannot allow it to suffer what he sees as crippling, perhaps mortal, flaws such as these. But Amar has a tool that does not lay in the kit of a normal biographer. Faced with serious faults in his subject, Amar corrects them. His remedy is to invent an unwritten Constitution that sits beside the written text. While he cautions that his unwritten Constitution "supplements but does not supplant" the written one (p. 273), he also admits that a "particular unwritten rule or principle [can] form[ ] part of America's Constitution-and is thus roughly on a par with or somehow akin to the canonical text" (p. 479). "America's unwritten Constitution and America's written Constitution fit together to form a single system" (p. 479). Although Amar would not describe it as such, the unwritten Constitution functions to cure virtually every supposed imperfection in the written version. And this simply cannot be right. As one of Amar's most penetrating critics has rightly said, "[t]he Constitution is not an unwritten vessel into which to pour the objects of one's interpretive desires. And it is on precisely this score that America's Unwritten Constitution is most deeply and seriously flawed."5

In this Review of Unwritten, we will make three points. First, we will describe Amar's method in revealing an unwritten Constitution. We will use women's rights as an example of a gap in the written Constitution that Amar corrects with a variety of sources. While we agree with his results as a matter of policy, we argue that, without the originalism of Biography, Unwritten contains no consistent limits on its sources and methods. Second, we delve deeper into the history of originalism as an interpretive method to show that it is not as flawed, perhaps, as Amar might think. While it arguably might have been conceived as a response to judicial activism of the Warren Court era, originalism has evolved into a sophisticated approach to constitutional interpretation that does not advance any particular political ideology. Third, we take up the question of instrumental or consequentialist reasons for originalism. We use bargaining theory to explain why originalism could have served as an important aid to the formation and continuation of the Union.

  1. UNWRITTEN'S SEARCH FOR THE PERFECT CONSTITUTION

    The unwritten Constitution would be unnecessary if Amar did not find the results of originalism so unsatisfyingly desiccated. To be sure, there are plenty of areas where Amar need not find a conflict between the original Constitution and good policy. In his view, for example, those who drafted and ratified the Fourteenth Amendment did not clearly preclude "separate but equal" segregation. But Amar finds that the unwritten Constitution- composed in part of the "words and deeds" of segregationists in the 1860s- shows no "gloss" on the Fourteenth Amendment's text that segregation was permissible (pp. 147-48). But, strictly speaking, Amar did not need to resort to a claim of an unwritten Constitution on this score. A reading of the plain text of the Fourteenth Amendment's Privileges and Immunities and Equal Protection Clauses, and the principles that the Reconstruction-era framers had in mind, would have supported the idea of a color-blind Constitution. In fact, Amar has contributed much to the literature seeking to recover the original understanding of the Reconstruction Amendments,6 which does not support the Supreme Court's mistakes in Plessy v. Ferguson7 and the Slaughter-House Cases.8

    It is the question of women's rights that shows the lengths to which Amar will go to save desirable, modern values from originalist outcomes. The written Constitution's explicit protection for women's rights appears only in the Nineteenth Amendment's guarantee of women's right to vote. The 1972 Equal Rights Amendment ("ERA"), moreover, fell short of ratification, failing to acquire the necessary approval of three-quarters of the states. But Amar finds an unwritten "Feminist Constitution" that adopted the substance of the ERA anyway (pp. 295-96). "This broad popular support was entitled to interpretive weight as a popular gloss on the Fourteenth Amendment and the Ninth Amendment, in keeping with the principles of America's lived Constitution" (p. 296). A majority of Americans may have supported the ERA, as Congress voted by the required two-thirds margin to send the amendment to the states. But the states failed to ratify it, which should indicate that the nation chose not to incorporate full gender equality in the constitutional text. Rather, the American people chose to continue to protect women's rights by statute in such laws as Titles VII and IX of the Civil Rights Act of 1964. Amar, however, concludes that "the ERA itself was a largely declaratory proposal - a restatement and elaboration" of the Fourteenth Amendment's guarantee of equality (p. 296).

    If this is true, of course, why bother with a constitutional amendment at all? Amar's approach confers on judges the license to conjure amendments to the Constitution based on perceived political and social movements but without any change to the text. Only the People can amend the text. That time-consuming process might strike some as much too cumbersome and unreliably plebeian as far as the scope and direction of the project are concerned. The ideas proposed by those movements may temporarily command majority support, but if they cannot survive the rigorous steps demanded by the Article V amendment process, they cannot assume the status of constitutional law. Even if one were to accept that political movements can supplement but not supplant constitutional meaning, how are judges to discern which principles qualify for constitutional establishment and which should seek their fates in the normal legislative process? It may be comforting that in some cases such movements lead to broader rights and greater equality, but widespread popular support has also coalesced around principles that Amar surely would not endorse. Racial segregation received majority support between Reconstruction and the 1950s, if the laws enacted by Congress and opinions of the Supreme Court are any sign at all. To illustrate, in 1875, the Blaine Amendment capitalized on anti-Catholic feeling in the country to try to prohibit any public aid for religious institutions, especially schools.9 Although the amendment passed the House and fell short by four votes in the Senate, twenty-one states added such provisions to their constitutions while seventeen already had them.10 Interracial marriage was widely disfavored, and legal bans on it were not struck down until 1967.11 Under Amar's approach, judges of the era could have found the unwritten Constitution to allow "separate but equal"-style racial segregation, to prohibit miscegenation, or to restrict the rights of religious minorities. We are sure Amar would not support any of these outcomes. Nor would we. But we cannot tell what...

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