The current edition of the University of Illinois Law Review features a series of articles on Akhil Amar's book America's Unwritten Constitution. Some highlights:
Stephen E. Sachs (Duke University School of Law), The “Unwritten Constitution” and Unwritten Law (2013 U. Ill. L. Rev. 1797):
America’s Unwritten Constitution is a prod to the profession to look for legal rules outside the Constitution’s text. This is a good thing, as outside the text there’s a vast amount of law—the everyday, nonconstitutional law, written and unwritten, that structures our government and society. Despite the book’s unorthodox framing, many of its claims can be reinterpreted in fully conventional legal terms, as the product of the text’s interaction with ordinary rules of law and language.
This very orthodoxy, though, may undermine Akhil Amar’s case that America truly has an “unwritten Constitution.” In seeking to harmonize the text with deep theories of political legitimacy and with daily practice in the courts, the book may venture further than our conventional legal sources can support. To put it another way, anything the “unwritten Constitution” can do, unwritten law can do better; and what unwritten law can’t do, probably shouldn’t be tried. Yet whether or not we accept the idea of an unwritten constitution, by refocusing attention on America’s rich tradition of unwritten law, Amar performs a great service to constitutional scholarship.
[With a cite, at n. 177, to The Originalism Blog: Michael Stern and Seth Barrett Tillman on the Vice President’s Impeachment Trial, The Originalism Blog (Nov. 4, 2012, 7:00 AM)].
Lawrence B. Solum (Georgetown University Law Center), Originalism and the Unwritten Constitution (2013 U. Ill. L. Rev. 1935):
In his book, America’s Unwritten Constitution, Akhil Reed Amar contends that to properly engage the written Constitution, scholars and laymen alike must look to extratextual sources: among them America’s founding documents, institutional practices, and ethos, all of which constitute Amar’s “unwritten Constitution.” In this Article, I argue that contemporary originalist constitutional theory is consistent with reliance on extraconstitutional sources in certain circumstances. I establish a framework for revaluating the use of extratextual sources. That framework categorizes extratextual sources and explains their relevance to constitutional interpretation (the meaning of the text) and constitutional construction (elaboration of constitutional doctrine and decision of constitutional cases). I conclude by applying the framework to a question posed by Akhil Amar: Can vice presidents preside over their own trial upon impeachment? A negative answer to this question is consistent with an originalist constitutional theory that carefully cabins the use of extratextual sources in constitutional interpretation and construction.
Alison L. LaCroix (University of Chicago Law School), The Constitution of the Second Generation (2013 U. Ill. L. Rev. 1775):
In his new book, Akhil Amar describes the “unwritten Constitution” as a set of values, customs, and beliefs that are crafted and revealed over time, and which inform the interpretation and application of the Constitution. Amar’s account centers on four key moments in United States history: the founding, Reconstruction, the New Deal, and the civil rights revolution of the 1960s, leaving relatively unexplored an essential period of existential, adolescent crisis: the early nineteenth century. Using a 1830 exchange between James Madison and Martin Van Buren as a case study, this Article discusses the significance of the period between 1815 and 1850 as an era of constitutional change.
Jason Mazzone (University of Illinois College of Law), Federalism Unwritten (2013 U. Ill. L. Rev. 1871):
Accounts of unwritten constitutional principles have tended to overlook unwritten principles of federalism. Using the tools that Akhil Amar provides in his book, America’s Unwritten Constitution, this Article seeks to correct that shortcoming. It begins the task of identifying the unwritten principles of federalism that developed historically and that shape our modern constitutional system. The Article does so by taking up an important historical case study: how, consistent with the Constitution’s federal design, were militiamen to be armed? The written Constitution assigns power to Congress to “provide for . . . arming . . .the Militia,” but what exactly this power meant in practice was unclear. Resolving the scope of this federal power—a power that could affect the lives of virtually every American citizen—generated widespread and passionate debates when, beginning in the first days of the Republic, efforts turned to ensuring that militiamen had the arms and equipment they needed to perform their national security role. These debates entailed the first significant national conversation about the meaning of American federalism that occurred after the drafting and ratification of the (written) Constitution. Unearthing this conversation enriches our understanding of federalism’s historical origins and its contemporary meaning. Several lessons emerge. While today federalism is often conceived as entailing divisions of authority, historically, federalism was highly dynamic: it involved overlapping federal and state jurisdiction and ongoing interactions between the states and the national government. A key component of our early federal system was the dependence of the federal government upon the states to put in place federal programs. This dependence gave the states authority to limit the reach of federal law, to decide which federal laws would apply at all, and to resist and curtail federal laws that were inconsistent with state policies. Today, courts play a key role in enforcing federalism limits on national power. Historically, the meaning of federalism developed in Congress and the federal executive branch, in the legislatures of the states and among their governors, and from the contributions of ordinary Americans. While questions of federalism are nowadays often discussed separately from issues of individual rights, historically, federalism and liberty were closely and inevitably intertwined: the language of federalism was often the language of individual rights, and vice-versa.
A recent episode highlights the importance of incorporating federalism into accounts of our unwritten Constitution. During the litigation over the Patient Protection and Affordable Care Act of 2010 that culminated in the Supreme Court’s 2012 decision in NFIB v. Sebelius, challengers to the federal individual health insurance mandate contended that never before had Congress required Americans to purchase something (in the case, an insurance policy). Supporters of the healthcare mandate responded that it was not unprecedented because in the Militia Act of May 8, 1792, Congress required militiamen to acquire their own arms and equipment. Neither side in the healthcare litigation had the story quite right, and this shared deficiency resulted from a common failure to understand the Militia Act in the context of the federalism principles this Article uncovers.
Adam M. Samaha (New York University School of Law), Levels of Generality, Constitutional Comedy, and Legal Design (2013 U. Ill. L. Rev. 1733):
Many commentators write happy endings to their constitutional stories. This Article examines a few techniques for reaching preferred conclusions without falling outside the boundary of conventional constitutional argument. The investigation is oriented around the levels of generality by which sources of constitutional law are characterized. Level of generality characterizations apply to all sources of constitutional argument including constitutional clauses, originalist history, tradition, and judicial precedent. But there is more than one kind of “generality”—or at least more than one idea associated with that concept in the law literature. We can isolate three different dimensions of source characterization that recur in modern constitutional debates: (1) abstractness, (2) breadth, and (3) dynamism. Each dimension is conceptually distinct, practically important, and independently interesting. Potential manipulation of choices along these dimensions, however, may create credibility problems for constitutional advocates who promote one set of characterizations over others. The Article closes by suggesting that, happily, constitutional advocates advertise serious matters of legal design when they argue about the degree of abstractness, breadth, and dynamism in constitutional law. Regardless of how these characterization decisions are made, they help determine the character of the legal system for us all.