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 Law / History
(continued from front flap)
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An authoritative work by one of America’s preeminent
legal scholars, America’s Unwritten Constitution presents a bold
AKHIL REED AMAR AMAR

D
new vision of the American constitutional system, showing how espite its venerated place atop American law

AMERICA'S
the complementary relationship between the Constitution’s “Akhil Amar’s splendid new book, America’s Unwritten Constitution, combines an unmatched eye for detail with a and politics, our written Constitution does not

written and unwritten components is one of America’s greatest unique capacity for overarching perspective and masterfully elegant synthesis. It is a wonderfully readable companion enumerate all of the rules and rights, principles

and most enduring strengths. to Amar’s unparalleled earlier volume, America’s Constitution: A Biography.Together, these two works convey as little else and procedures that actually govern modern America. The
can the majesty and sweep of America’s constitutional project.” —LAURENCE H. TRIBE, document makes no explicit mention of cherished concepts
Carl M. Loeb University Professor and Professor of Constitutional Law, Harvard Law School
The Precedents like the separation of powers and the rule of law. On some
issues, the plain meaning of the text misleads. For example,
“Akhil Amar brings the patience of a historian, the ardor of a lover, and (yes, sometimes) the panache of a conjurer to

CONSTITUTION
UNWRITTEN
AMERICA'S
the text seems to say that the vice president presides over his

UNWRITTEN
America’s unwritten Constitution. If you want to argue with him, you will have to summon all these qualities yourself.
This is a serious and provocative book.” —RICHARD BROOKHISER, author of James Madison own impeachment trial—but surely this cannot be right. As
esteemed legal scholar Akhil Reed Amar explains in America’s
“This book is brilliant, creative, ambitious, comprehensive, imaginative, and thought-provoking. It is a must-read for
Unwritten Constitution, the solution to many constitutional
© Harold Shapiro

anyone interested in Constitutional Law.” —STEVEN G. CALABRESI, Class of 1940 Research Professor,
puzzles lies not solely within the written document, but beyond
Northwestern University School of Law; Co-Founder of the Federalist Society
and Pr inciples it—in the vast trove of values, precedents, and practices that

“This is an engrossing, epic work of enduring importance—not only a treasure trove for scholars of American law, complement and complete the terse text.
In this sequel to America’s Constitution: A Biography, Amar

CONSTITUTION
history, and politics, but also an inspiring, empowering guidebook for activists. It compellingly demonstrates how to

AKHIL R EED A M AR harness the Constitution’s full meaning in order to promote its thrilling vision of liberty and justice for all. No matter takes readers on a tour of our nation’s unwritten Constitution,

is Sterling Professor of Law and Political Science at Yale what your prior knowledge of this field, and no matter what your ideological perspective, this magnificent book will showing how America’s foundational document cannot
enhance your understanding and appreciation of our cherished Constitution. If I had to choose a single work to
University, and periodically serves as a visiting professor at be understood in textual isolation. Proper constitutional

Harvard, Columbia, and Pepperdine Law Schools. Amar is the

recommend to either my constitutional law students or my civil libertarian colleagues, this would be it.”
We L ive By interpretation depends on a variety of factors, such as the
6-1/4 x 9-1/2”
S: 2”
—NADINE STROSSEN, Former President, American Civil Liberties Union; Professor, New York Law School
precedents set by early presidents and Congresses; common B: 1-13/16”
author of four books, including America’s Constitution, which won
the Silver Gavel Award from the American Bar Association, and “In America’s Unwritten Constitution, Professor Amar adds to his already masterful bibliography what will instantly practices of modern American citizens; venerable judicial BASIC
HC
The Bill of Rights, which was awarded a Silver Gavel Certificate become a classic examination of constitutional law. As the Constitution itself stood in need of a seminal biography, so decisions; and particularly privileged sources of inspiration and

of Merit. A member of the American Academy of Arts and

Sciences and a Senior Scholar at the National Constitution
Center, Amar is often cited by the Supreme Court and is a
too the vast and varied domain of our Nation’s constitutional law cried out for a guidebook. Professor Amar has now
brilliantly provided both.” —KEN STARR, President of Baylor University;
Solicitor General of the United States, 1989-1993; Independent Counsel, 1994-1999
AKHIL REED guidance, including the Federalist papers, William Blackstone’s
Commentaries on the Laws of England, the Northwest Ordinance
of 1787, Lincoln’s Gettysburg Address, and Martin Luther King,
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 CROWN FOIL
424

The Precedents

and Pr inciples

We L ive By
 A M ER IC A’S

UN W R IT T EN

CONSTIT U TION
 Also by Ak hi l Reed A m ar

America’s Constitution
The Bill of Rights
The Constitution and Criminal Procedure
 A M ER IC A’S

UN W R IT TEN

CONSTIT U TION

The Precedents and Principles

We Live By

AK HIL R EED A M AR

A Member of the Perseus Books Group

New York
 Copyright © 2012 by Akhil Reed Amar
Published by Basic Books,
A Member of the Perseus Books Group

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Library of Congress Cataloging-in-Publication Data

Amar, Akhil Reed.
America’s unwritten constitution : the precedents and principles we
live by / Akhil Reed Amar.
p. cm.
Includes bibliographical references and index.
ISBN 978-0-465-02957-0
1. Constitutional history—United States. 2. Constitutional law—
Social aspects—United States. I. Title.
KF4541.A875 2012
342.7302’9—dc23
2012012363
10 9 8 7 6 5 4 3 2 1
“For God, for country, and for Yale”
and also—always—for family
 CON T EN TS

Introduction ix
1. Reading Between the Lines:
America’s Implicit Constitution 1
2. Heeding the Deed: America’s Enacted Constitution 49
3. Hearing the People: America’s Lived Constitution 95
4. Confronting Modern Case Law:
America’s “Warrented” Constitution 139
5. Putting Precedent in Its Place: America’s
Doctrinal Constitution 201
6. Honoring the Icons: America’s Symbolic Constitution 243
7. “Remembering the Ladies”:
America’s Feminist Constitution 277
8. Following Washington’s Lead:
America’s “Georgian” Constitution 307
9. Interpreting Government Practices:
America’s Institutional Constitution 333
10. Joining the Party: America’s Partisan Constitution 389
11. Doing the Right Thing:
America’s Conscientious Constitution 417
12. Envisioning the Future:
America’s Unfinished Constitution 449
Afterword 479
Appendix: America’s Written Constitution 487
Notes 517
Acknowledgments 597
Illustration Credits 599
Index 601
 IN T RODUC TION

T HE EIGHT THOUSAND WORDS OF America’s written Constitution

only begin to map out the basic ground rules that actually govern our
land. For example, the idea that racial segregation is inherently unequal
does not explicitly appear in the terse text. The First Amendment prevents
“Congress” from abridging various freedoms, but the Amendment does
not expressly protect these freedoms from abridgment by the president
or state governments. None of the Constitution’s early amendments ex-
plicitly limits state governments. Although everyone today refers to these
early amendments as “the Bill of Rights,” this phrase, too, is unwritten. The
phrases “separation of powers,” “checks and balances,” and “the rule of law”
are also absent from the written Constitution, but all these things are part
of America’s working constitutional system—part of America’s unwritten
Constitution.
Consider also the axiom that all voters must count equally—one person,
one vote—in state elections and in elections to the U.S. House of Repre-
sentatives. No clause of the written Constitution expressly proclaims this
axiom. At the Founding, this axiom was not widely honored in practice;
nor did it sweep the land at any time over the next 175 years. And yet today,
this unwritten rule—a rule supported by every Supreme Court justice, by
both major parties, by opinion leaders of all stripes, and by an overwhelm-
ing majority of ordinary citizens—forms the bedrock of the American sys-
tem of government.
Of course, much (though not all) of America’s “unwritten Constitution”
does involve written materials, such as venerable Supreme Court opinions,
landmark congressional statutes, and iconic presidential proclamations.
These materials, while surely written texts, are nonetheless distinct from

ix
 Introduction

the written Constitution and are thus properly described by lawyers and
judges as parts of America’s unwritten Constitution.
America’s unwritten Constitution encompasses not only rules specify-
ing the substantive content of the nation’s supreme law but also rules clari-
fying the methods for determining the meaning of this supreme law. Since
the written Constitution does not come with a complete set of instructions
about how it should be construed, we must go beyond the text to make
sense of the text.
Without an unwritten Constitution of some sort, we would not even be
able to properly identify the official written Constitution. In the late 1780s,
several different versions of the text circulated among the citizenry, each
calling itself the “Constitution.” Each featured slightly different punctua-
tion, capitalization, and wording. Which specific written version was and
is the legal Constitution? To find the answer, we must necessarily go be-
yond these dueling texts themselves and consider things outside the texts.
(When we do, we shall discover that the hand-signed parchment now on
display in the National Archives is not and never was the official legal ver-
sion of the Constitution, though this celebrated parchment does, happily,
closely approximate the official text.) With a proper analytic framework in
place, we shall also be poised to resolve a debate that has recently erupted
about whether the Constitution contains a consciously Christian reference
to Jesus in the phrase “the Year of our Lord”—a phrase that appeared in
many but not all of the self-described written Constitutions making the
rounds in the 1780s.

WHAT, EXACTLY, IS THE UNWRITTEN Constitution and how can we

find it? How can Americans be faithful to a written Constitution even as
we venture beyond it? What is the proper relationship between the docu-
ment and the doctrine—that is, between the written Constitution and the
vast set of judicial rulings purporting to apply the Constitution? In par-
ticular, how should we think about various landmark cases—from Brown
v. Board of Education and Gideon v. Wainwright to Reynolds v. Sims and Roe
v. Wade—that critics over the years have assailed as lacking proper founda-
tions in the written Constitution?
This book tackles these and related questions. In brief, I argue that the

x
 Introduction

written Constitution itself invites recourse to certain things outside the

text—things that form America’s unwritten Constitution. When viewed
properly, America’s unwritten Constitution supports and supplements the
written Constitution without supplanting it.
Consider the Constitution’s Ninth Amendment, which affirms the real-
ity of various rights that are not textually “enumerat[ed]”—rights that are
concededly not listed in the document itself. To take this amendment seri-
ously, Americans must go beneath and beyond the Constitution’s textually
enumerated rights. For instance, even though the text fails to specify a
criminal defendant’s entitlement to introduce reliable physical evidence of
his innocence, surely this textual omission should not doom a defendant’s
claim of right.
The Ninth Amendment is not the only textual portal welcoming us
to journey beyond the Constitution’s text, and the trail of unenumerated
rights is only one of several routes worth traveling in search of America’s
unwritten Constitution. In the pages that follow, we shall revisit many of
our Constitution’s most important topics, from federalism, congressional
practice, executive power, and judicial review to race relations, women’s
rights, popular constitutionalism, criminal procedure, voting rights, and
the amendment process.
With case studies drawn from these and other areas, we shall see how
America’s two Constitutions, written and unwritten, cohere to form a
single constitutional system. The written Constitution cannot work as in-
tended without something outside of it—America’s unwritten Constitu-
tion—to fill in its gaps and to stabilize it. In turn, America’s unwritten
Constitution could never properly ignore the written Constitution, which
is itself an integral part of the American experience. Over the centuries,
various extratextual practices and precedents that have done justice to the
text have flourished while other extratextual practices and precedents that
have done violence to the text have faded away.
No Supreme Court opinion has ever openly proclaimed that its mem-
bers may properly disregard or overturn the written Constitution. Accord-
ing to the Court, judicial precedents may in appropriate situations be judi-
cially overruled; various statutes may be invalidated by courts or repealed
by Congress; unwritten customs may ebb away; unenumerated rights may

xi
 Introduction

occasionally be pruned back. But the written Constitution itself operates

on a higher legal plane, and a clear constitutional command may not as a
rule be trumped by a mere case, statute, or custom.
Other elements of our unwritten Constitution—well-established leg-
islative and executive practices and deeply embedded American political
norms—similarly evince fidelity to the written Constitution. Congress
members, presidents, cabinet officers, state legislators, and governors all
pledge allegiance to the terse text. Ordinary citizens celebrate this docu-
ment—at times to the point of idolatry, revering it without reading it.
Indeed, the very concept of a written Constitution forms part of our na-
tional language and lies at the heart of our national birth-story. At the pre-
cise historical moment that British colonists in the New World declared
their independence from the British crown, they also freed themselves
from traditional British ideas of constitutionalism. Between 1776 and 1789,
Americans adopted a series of written “constitutions,” first at the state level
and then continentally. Each of these documents audaciously sought to
compress basic legal ground rules into a single text that would outrank the
vast mass of ordinary law. Most of these constitutions also aimed to speak
in a special way to and for ordinary citizens. In 1787–1788, the process of
ordaining the last and most momentous of these written instruments, a
continent-wide “Constitution for the United States of America,” directly
involved far more voters than had any previous constitutional event in
world history.
The standard British understanding of a “constitution” was quite differ-
ent at that time, and remains so today. The “British Constitution” has never
consisted of a single foundational document. Nor has it ever been reducible
to a clearly defined set of specially enacted legal texts. Rather, for centuries
the term “British Constitution” has referred to the traditions, practices, un-
derstandings, principles, and institutions that collectively structure the ba-
sic British system of government and way of life. In short, Britain has long
lived under an entirely “unwritten Constitution.” Ever since 1776, America
has rejected this British model.
But America’s revolutionary break with the British model was only par-
tial, not total. In several ways, the terse text has always pointed beyond
itself, inviting readers to fill in its gaps by consulting extratextual sources

xii
 Introduction

such as judicial opinions, executive practices, legislative enactments, and

American traditions. America’s written Constitution thus bids us to heed
her unwritten Constitution, which in turn refers us back, in various ways,
to its written counterpart. Like the Chinese symbols yin and yang, Amer-
ica’s written Constitution and America’s unwritten Constitution form two
halves of one whole, with each half gesturing toward the other.
Equipped with this comprehensive understanding of the American con-
stitutional system, we can begin to bridge the deep divide in our current
constitutional culture. Today, some judges, politicians, pundits, and schol-
ars plant their flag on the high ground of constitutional text and original
intent, while others proudly unfurl the banner of a “Living Constitution.”
Too often, each side shouts past the other, and both sides overlook various
ways in which the text itself, when properly approached, invites recourse to
certain nontextual—unwritten—principles and practices. We are all textu-
alists; we are all living constitutionalists.

TWO POINTS ABOUT THIS BOOK’S scope and structure deserve emphasis
at the outset.
First, although this book uses legal materials and legal reasoning to
show the reader why various constitutional interpretations are legally cor-
rect or incorrect, nonlawyers should not be daunted. Nothing here requires
any special legal training or background. This is a book for general-interest
readers who care about the Constitution, whether they be schoolteach-
ers, college students, journalists, political activists, or merely civic-minded
citizens. Whenever actual judicial cases, congressional statutes, presiden-
tial proclamations, state laws, House and Senate rules, and the like are
discussed, I provide enough background to enable the reader to grasp the
relevant issues.
At various points, I posit hypothetical fact patterns to help the reader
see the proper shape of a given unwritten constitutional rule. Hypotheti-
cals are the grist of legal reasoning and form an implicit or explicit part of
virtually every legal case ever decided and every legal issue ever analyzed
outside a courtroom. Even if a judge is sure that the plaintiff in the case at
hand—call it case A—deserves to win, the judge must decide how broadly
or narrowly to rule. If she adopts a broad rule, plaintiffs in later cases B

xiii
 Introduction

and C will also deserve to win under the sweeping logic she announces. By
contrast, a narrow rule in case A might mean that plaintiffs in later cases
B and C will likely or surely lose. When case A is decided, the distinct
fact patterns of cases B and C may not yet have arisen. Perhaps these fact
patterns will never arise. But precisely because cases B and C could in prin-
ciple later materialize, a good judge will think carefully about these now-
hypothetical cases in crafting the proper rule for the case at hand—case A.
For similar reasons, I shall routinely illustrate the proper scope of an
unwritten constitutional principle by asking the reader to ponder a fact
pattern that has yet to arise and that perhaps may never arise. Often these
hypotheticals are closely related to fact patterns that have already occurred
and cases that have already been decided. The hypothetical merely presents
the relevant issue in a cleaner way that clarifies analysis. The hypotheticals
showcased in this book are thus not the stuff of science fiction. They do
not involve Martian invasions or antigravity pills. They aim not to bend the
reader’s mind, but to sharpen it. Specifically, several of these hypotheticals
are designed to show the reader that we today can sometimes be quite sure
that a future case must and will be decided a particular way, even though
the text of the Constitution does not provide an explicit answer, and even
though no identical court case has yet been decided. Nevertheless, we can
be confident of the right answer to this not-yet-decided case because there
truly is an unwritten Constitution alongside the written Constitution—
and because there is a great deal more to this unwritten Constitution than
merely the sum total of all previously decided judicial cases.
Second, this book is about method as well as substance. Before we can
confidently say what government officialdom may and may not properly
do under various unwritten constitutional rules, we must figure out how
to find these unwritten rules. Fortunately, there are a handful of inter-
pretative tools—constitutional compasses and lenses—that can be used
to locate and bring into sharp focus the unwritten substantive do’s and
don’ts. The written Constitution does not enumerate these methodological
tools. Thus, these interpretive instruments are themselves components of
America’s unwritten Constitution.
Indeed, these lenses and compasses are perhaps the most important
components of America’s unwritten Constitution, and they form the or-

xiv
 Introduction

ganizational spine of this book. Fair warning: This book is not arranged by
substantive subject matter. I do not, for example, devote one chapter to re-
ligious freedom, another to separation of powers, and yet another to voting
rights. Rather, each chapter opens with a brief explanation of a particular
way of approaching America’s unwritten Constitution—using a distinct
methodological tool—and then proceeds to offer a few illustrative (but not
exhaustive) examples of the specific unwritten substantive rules that this
particular methodological tool helps us find and define.
In actual constitutional practice, faithful interpreters make use of mul-
tiple tools to think about any given constitutional issue. The distinct meth-
odological instruments thus work together, in much the same way that
distinct chapters work together to form a book and distinct vertebrae work
together to form a spine.
Consider, for example, America’s preeminent right, the freedom of
speech. Textually, this freedom appears in the First Amendment, but if
everything depended solely on this explicit patch of constitutional text,
which became part of the Constitution in 1791, then the First Congress
in 1789 and 1790 would have been free to pass censorship laws had it so
chosen. But surely the First Congress had no such power. And surely states
have never had proper authority to shut down political discourse, even
though the First Amendment does not expressly limit states. The robust,
wide-open, and uninhibited freedom of American citizens to express their
political opinions is a basic feature of America’s unwritten Constitution
that predates and outshines the First Amendment. Or so I claim.
I do not prove this specific claim in a single chapter devoted solely to
free speech. Rather, free speech pops up at several points in the book, each
time in connection with a different method for finding America’s unwrit-
ten Constitution. In Chapter 1, I invite readers to read between the lines
of the Constitution—to see what principles are implicit in the document,
read as a whole, even if these principles are nowhere explicitly stated in
any specific clause. In the middle of this chapter I show that free speech is
one implicit principle among many. In Chapter 2, I invite readers to pur-
sue a wholly different methodological line of inquiry—to look away from
the text altogether, if only momentarily, and instead ponder the specific
historical procedures and protocols by which the Constitution was in fact

xv
 Introduction

enacted. It turns out that this method gives us a second and distinct reason
for believing that an unwritten constitutional right of free speech preceded
and surpassed the First Amendment. Chapter 3 offers a third way of think-
ing about unwritten constitutionalism, focusing on the actual rights that
ordinary twenty-first-century Americans embody and embrace in their
daily lives. One of those rights is the freedom of speech. Further support
for a robust right of free speech appears when we take yet another method-
ological tack by reading the Constitution through the lens of modern case
law—the approach showcased in Chapter 4. Later chapters illustrate still
more ways to find the unwritten Constitution, and in these chapters free
speech occasionally pops up yet again.

ULTIMATELY, THIS BOOK explains not merely what America’s Con-

stitution, written and unwritten, says on a wide variety of topics, but, even
more critically, how to make proper constitutional arguments—how to
think constitutional law and how to do constitutional law. Some of these
ways of thinking and doing are well understood today; others are not. Thus
this book offers a new vision of the nature of constitutional interpreta-
tion—a new vision, that is, of the tools and techniques for going beyond
the written Constitution while remaining faithful to it.
Although this book makes no claim to encompass every aspect of
America’s unwritten Constitution, the chapters that follow seek to illu-
minate many of the best avenues for understanding this expansive and
sometimes elusive entity. Alongside my book America’s Constitution: A Bi-
ography, which mapped the written Constitution in considerable detail, the
current volume aims to offer readers a vivid and panoramic account of the
American constitutional experience.

xvi
 A M ER IC A’S

UN W R IT T EN

CONSTIT U TION
 Another Random Document on
Scribd Without Any Related Topics
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