Saving Originalism

Robert J. Delahunty* & John Yoo**

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.

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.

*      Professor of Law, University of St. Thomas School of Law.

**      Emanuel S. Heller Professor of Law, University of California, Berkeley, School of Law; Visiting Scholar, American Enterprise Institute. We thank Michael Paulsen for his comments on the manuscript and Daniel Chen and Riddhi Dasgupta for excellent research assistance.

[1].     Sterling Professor of Law, Yale Law School.

[2].     Akhil Reed Amar, America’s Constitution: A Biography (2005).

[3].     Herrera v. Collins, 506 U.S. 390, 428 n.* (1993) (Scalia, J., concurring) (citing Henry P. Monaghan, Our Perfect Constitution, 56 N.Y.U. L. Rev. 353 (1981)).

[4].     David A. Strauss, The Living Constitution 12–15 (2010).

[5].     Michael Stokes Paulsen, The Text, the Whole Text, and Nothing but the Text, So Help Me God: Un-Writing Amar’s Unwritten Constitution, 81 U. Chi. L. Rev. 1385, 1415 (2014) (reviewing America’s Unwritten Constitution); see also David A. Strauss, Not Unwritten, After All?, 126 Harv. L. Rev. 1532, 1550 (2013) (reviewing America’s Unwritten Constitution) (“If you believe that the only true source of constitutional law is the written Constitution—but you want to accept American constitutional law in something like its present shape—then Amar will show you how to do it.”).

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