Richard Posner on Akhil Amar
In The New Republic, Richard Posner: How Many Constitutions Can Liberals Have? (reviewing Akhil Amar, America's Unwritten Constitution: The Precedents and Principles We Live By). A long and sharply critical review -- from the early part:
There is not just one unwritten constitution, in Amar’s reckoning; there are eleven of them. There is an “implicit” constitution, a “lived” constitution, a “Warrented” constitution (the reference is to Earl Warren), a “doctrinal” constitution, a “symbolic” constitution, a “feminist” constitution, a “Georgian” constitution (the reference is to George Washington), an “institutional” constitution, a “partisan” constitution (the reference is to political parties, which are not mentioned in the written Constitution), a “conscientious” constitution (which, for example, permits judges and jurors to ignore valid law), and an “unfinished” constitution that Amar is busy finishing. All these unwritten constitutions, in Amar’s view, are authoritative. And miraculously, when correctly interpreted, they all cohere, both with each other and with the written Constitution. The sum of the twelve constitutions is the Constitution.
One is tempted to say that this is preposterous, and leave it at that. But it is an attempt to respond to the felt need of professors of constitutional law, and of judges who rule on constitutional cases (particularly Supreme Court justices), to find, or at least to assert, an objective basis for constitutional decisions. On the eve of the Supreme Court’s decision on the constitutionality of the Affordable Care Act—a time of liberal panic—Amar was quoted as saying that if the Court invalidated the act “then yes, it’s disheartening to me, because my life was a fraud. Here I was, in my silly little office, thinking law mattered, and it really didn’t. What mattered was politics, money, party, and party loyalty.” But the constitutional “law” that matters to Amar is not what other lawyers understand law to be. It is a palimpsest of twelve constitutions, only one of which is real.
Among his specific criticisms:
I have yet to describe Amar’s most outlandish riff on the Nineteenth Amendment. Comparing its enactment to the prosecution of the Nazi leaders at Nuremberg, he argues that both proceedings dispensed justice retroactively in order to make amends for past enormities. The Nuremberg Tribunal punished the Nazi leaders for violating principles of international law that had not been widely recognized previously, and Amar argues that the Nineteenth Amendment authorized judges to invalidate interpretations of the written Constitution that might have been influenced by the exclusion of women from playing any role in the Constitution’s ratification. Hence the decision in which the Supreme Court invalidated provisions of the Violence Against Women Act as exceeding Congress’s authority to regulate interstate commerce was wrong, Amar argues, because the Nineteenth Amendment implicitly invalidates any interpretation of earlier constitutional provisions, such as the commerce clause of Article I, that harms women, because women had no opportunity to participate in the drafting or the ratification of those provisions. Similarly, Amar argues, the Supreme Court could have invalidated the laws against abortion as soon as the Nineteenth Amendment was ratified, holding that the laws would be valid “only if reenacted by a legislature elected by women voting equally alongside men.” By this logic, the Twenty-Sixth Amendment, ratified in 1971, which gave 18-year-olds the constitutional right to vote, invalidated all earlier interpretations of the Constitution adverse to 18- to 20-year-olds, such as conscription of minors.
And from the conclusion:
When you have twelve constitutions to play with, of which only one is a document, you can reach any result you want, and you can say that the result you want is in the Constitution(s), which like the Trinity is at once singular and plural. You put it in, you stir it in a pot called “the implicit meaning of the Constitution as a whole,” and then you pluck it out, congratulating yourself on your “sensitive understanding of America’s unwritten Constitution.”
Thanks to Michael Perry for the pointer.