America's Unwritten Constitution: The Precedents and Principles We Live By [Hardcover]

Akhil Reed Amar (Author)

Book Description

Publication Date: September 11, 2012

Despite its venerated place atop American law and politics, our written Constitution does not enumerate all of the rules and rights, principles and procedures that actually govern modern America. The document makes no explicit mention of cherished concepts like the separation of powers and the rule of law. On some issues, the plain meaning of the text misleads. For example, the text seems to say that the vice president presides over his own impeachment trial—but surely this cannot be right. As esteemed legal scholar Akhil Reed Amar explains in America’s Unwritten Constitution, the solution to many constitutional puzzles lies not solely within the written document, but beyond it—in the vast trove of values, precedents, and practices that complement and complete the terse text.

In this sequel to America’s Constitution: A Biography, Amar takes readers on a tour of our nation’s unwritten Constitution, showing how America’s foundational document cannot be understood in textual isolation. Proper constitutional interpretation depends on a variety of factors, such as the precedents set by early presidents and Congresses; common practices of modern American citizens; venerable judicial decisions; and particularly privileged sources of inspiration and 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, Jr.’s “I Have a Dream” speech. These diverse supplements are indispensible instruments for making sense of the written Constitution. When used correctly, these extra-textual aids support and enrich the written document without supplanting it.

An authoritative work by one of America’s preeminent legal scholars, America’s Unwritten Constitution presents a bold new vision of the American constitutional system, showing how the complementary relationship between the Constitution’s written and unwritten components is one of America’s greatest and most enduring strengths.

Editorial Reviews

Review

Washington Post
“In America’s Unwritten Constitution, Akhil Reed Amar aims high and has produced a masterful, readable book that constitutes one of the best, most creative treatments of the U.S. Constitution in decades.… [The book] is filled with thought-provoking material and fun vignettes, suitable for a wide audience…. Amar’s approach is refreshing…. Amar makes a creative case that America’s written Constitution and its unwritten Constitution, since the beginning of the nation, have fit snugly together to form a single, more perfect union.”

Wall Street Journal
“Akhil Reed Amar is a rarity: a progressive law professor who is unafraid of the text of the Constitution…. In his ambitious new book, America’s Unwritten Constitution, he examines the paradox of needing to go beyond the text in order to faithfully follow the text…. His is a ‘holistic’ interpretation, one that rejects reading passages or clauses of the text in isolation from the document as a whole. He is masterfully creative in finding overarching themes that tie the disparate clauses together in novel and sometimes counterintuitive ways…. A highly engaging and thought-provoking book.”

New York Times Book Review
“In America’s Unwritten Constitution, Akhil Reed Amar, a commendably unorthodox and, in some ways, iconoclastic constitutional scholar at Yale Law School, bucks dominant opinions on both sides of the political spectrum. He contends that the written Constitution points to an unwritten one, and he argues that we can interpret with both intellectual honesty and analytical rigor.”

Boston Globe
“The Constitution has been described as both binding law and aspirational treatise…. Akhil Amar, a Yale law professor and one of contemporary America’s most brilliant constitutional scholars, [suggests] in his latest, and best, book, America’s Unwritten Constitution, that the issue is not an ‘either-or’ question…. As a lawyer and constitutional rights activist, I cannot imagine how anybody who cares about the law, and justice, which are not always the same thing, could fail to place this important book at the very top of the must-read list. It’s a gem.”

The Federal Lawyer
“[An] ambitious work.... Amar’s great contribution is to relate some of the great thematic developments of constitutional history to the words of the Constitution itself.... America’s Unwritten Constitution is not a treatise intended to guide legal practitioners or political scientists. Its aim is the more majestic one of articulating some of the grand underlying themes of American constitutional law and grounding them in the constitutional text. It aspires to be what Thucydides called ‘a possession for all time,’ and it succeeds. Readers today, as well as those of future generations, will read it to their profit.”

Laurence H. Tribe, Carl M. Loeb University Professor and Professor of Constitutional Law, Harvard Law School
“Akhil Amar’s splendid new book, America’s Unwritten Constitution, combines an unmatched eye for detail with a unique capacity for overarching perspective and masterfully elegant synthesis. It is a wonderfully readable companion to Amar’s unparalleled earlier volume, America’s Constitution: A Biography. Together, these two works convey as little else can the majesty and sweep of America’s constitutional project.”

Ken Starr, President of Baylor University; Solicitor General of the United States, 1989-1993; Independent Counsel, 1994-1999
“In America’s Unwritten Constitution, Professor Amar adds to his already masterful bibliography what will instantly become a classic examination of constitutional law. As the Constitution itself stood in need of a seminal biography, so too the vast and varied domain of our Nation’s constitutional law cried out for a guidebook. Professor Amar has now brilliantly provided both.” 

Richard Brookhiser, author of James Madison
“Akhil Amar brings the patience of a historian, the ardor of a lover, and (yes, sometimes) the panache of a conjurer to 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.”

Steven G. Calabresi, Class of 1940 Research Professor, Northwestern University School of Law; Co-Founder of the Federalist Society
“This book is brilliant, creative, ambitious, comprehensive, imaginative, and thought-provoking.  It is a must-read for anyone interested in Constitutional Law.” 

Nadine Strossen, Former President, American Civil Liberties Union; Professor, New York Law School
“This is an engrossing, epic work of enduring importance—not only a treasure trove for scholars of American law, history, and politics, but also an inspiring, empowering  guidebook for activists.  It compellingly demonstrates how to harness the Constitution’s full meaning in order to promote its thrilling vision of liberty and justice for all.  No matter what your prior knowledge of this field, and no matter what your ideological perspective, this magnificent book will enhance your understanding and appreciation of our cherished Constitution.  If I had to choose a single work to recommend to either my constitutional law students or my civil libertarian colleagues, this would be it.”

Kirkus Reviews
“[Amar lays] out his argument in case-by-case details that are scholarly and legalistic but always readable…. [An] ingenious mixture of history, legal anecdotes and hypothetical cases.”

Publishers Weekly
“Yale law professor Amar follows his highly regarded historical-textual analysis of America’s Constitution with a companion volume on the history, culture, and legal tenets of the ‘unwritten constitution,’ the traditions and precedents that inform constitutional interpretation…. Sophisticated readers will be rewarded for traveling with Amar as he covers a great deal of ground.”

Booklist
“Deeply researched and carefully argued, this book is nothing less than a sophisticated and comprehensive theory of constitutional jurisprudence that resists being construed along narrow political lines. Indispensable for law students and scholars, this will also be enjoyed by general readers who are passionate about constitutional law.”

About the Author

Akhil Reed Amar is Sterling Professor of Law and Political Science at Yale University, and periodically serves as a visiting professor at Harvard, Columbia, and Pepperdine Law Schools. Amar is the author of four books, including America’s Constitution, which won the Silver Gavel Award from the American Bar Association, and The Bill of Rights, which was awarded a Silver Gavel Certificate 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 frequent expert witness in Congressional hearings.

Product Details

• Hardcover: 640 pages
• Publisher: Basic Books (September 11, 2012)
• Language: English
• ISBN-10: 0465029574
• ISBN-13: 978-0465029570
• Product Dimensions: 6.6 x 2.1 x 9.4 inches
• Shipping Weight: 2 pounds (View shipping rates and policies)
• Average Customer Review: 4.3 out of 5 stars  See all reviews (22 customer reviews)
• Amazon Best Sellers Rank: #23,351 in Books (See Top 100 in Books)
  • #13 in Books > Law > Legal History
  • #15 in Books > Politics & Social Sciences > Politics & Government > Political Science > Constitutions
  • #17 in Books > Law > Constitutional Law

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Most Helpful Customer Reviews

62 of 67 people found the following review helpful

5.0 out of 5 stars Another Sterling Performance from Prof. Amar September 1, 2012

By JosephusMyer

Format:Hardcover|Amazon Verified Purchase

I just received this book - two weeks before it is officially released. I'm not entirely sure how that is possible, but congratulations to Amazon for its efficiency.

As a Yale Law student, the temptation to buy this book was overwhelming. And it hasn't disappointed: as one would expect from Akhil Amar, the writing is lucid; the arguments are powerful (even when one might not entirely agree with them); and the level of scholarly detail astounding. I have no doubt that this book will take its place in the canon of Constitutional scholarship, and every law student, attorney, and judge should put this at the top of their reading list.

Amar is known for holding a few positions outside the mainstream, and this book is no exception. Like in America's Constitution: A Biography, readers will occasionally find, particularly near the end of a chapter, some claims that may lead them to raise an eyebrow. But even these deserve a careful read, and from time to time, the reader will be convinced. Even when they are not, hearing Amar's intelligent arguments will remind them of the necessity of not blindly following the mainstream and making one's mind up for oneself, based on all the evidence and logic.

Some arguments in this book are of enormous importance. Amar's call to remember the Common Law and revolutionary experience that colors the words used in the concise text of the Constitution serves as an important reminder to modern judges to avoid the temptation to construe language in a vacuum; like all forms of communication, it is vital to recall that the meaning of language is a product of social and historical context. Similarly, Amar's reminders that, even when a broad principle is enumerated in the Constitutional text, advances in understanding may lead it to be applied differently to how the Drafters may have expected resemble the 'New Textualist' and 'Living Originalist' (see: Living Originalism) schools that have done so much to ground rights 'discovered' recently in sound constitutional theory.

Nonetheless, one cannot accept what Amar says uncritically. Unless I have missed it, he fails to address recent revisionist arguments against the traditional identification of the early 20th Century as 'the Lochner era' (see, e.g., Rehabilitating Lochner: Defending Individual Rights against Progressive Reform). Whatever one thinks about whether these arguments have merit, they deserve a response. While Amar properly criticizes the majority opinion in Roe v. Wade for its singular unwillingness to explain how it found a right to abortion that contradicted the laws of every State, his proposed alternative basis - that these laws that specially affected women were invariably first enacted by all-male legislatures - is almost perverse in its tendency to ignore the fact that such laws are generally created not out of any evil desire to subjugate women (even if some - presumably including Amar - might say that was their effect), but out of a sincere belief that a child's life is terminated. Nor, as far as I can tell, does Amar discuss whether Roe could survive if a legislature in which women were properly represented decided to limit access to abortion. Again - whatever one thinks of abortion and Roe, Amar's argument has notable omissions.

Despite these caveats, and the disagreements many (if not most) readers will have with some of Amar's positions (inevitable for a book that comments on so many controversial legal and political issues), this book clearly deserves five stars. Overall, it is an excellent work of scholarship - and like all such works, it should not be read uncritically. But disagreeing with an argument in the book is part of the fun of reading it.

9 of 9 people found the following review helpful

5.0 out of 5 stars Insights on Every Page January 5, 2013

By Eclecticism

Format:Kindle Edition|Amazon Verified Purchase

Like another reviewer here, I bought this Kindle book on the strength of Akhil Reed Amar's other book, "America's Constitution: A Biography." Er, no problem with the use of "America" in either of these titles. These two books really should be read sequentially, starting with Biography. In Biography, Reed goes word for word through the "terse text." In Unwritten, he shows how the various Constitutions -- implicit, lived, symbolic, etc. -- flesh out and strengthen the words of the document itself.

While reading this book I was mulling the thought of subtracting a star due to a tendency of the author to get a little too far down in the weeds. And then I came to Chapter 6, "Honoring the Icons: America's Symbolic Constitution." This chapter examines six texts -- no spoilers here but at least one of them will surprise you -- that illustrate not just the Constitution but what it means to be an American. Another part of this chapter -- on the three Supreme Court cases that deserve to be in the SCOTUS Hall of Shame (my words, not his) is similarly insightful. This chapter is worth being issued as a Kindle-single edition.

Akhil Reed Amar's writing throughout is lawyerly but elegant (check out the Look Inside feature to confirm). The book is written for a layperson, not a lawyer, with ample, clear definitions of important terms. Yes, Amar should be on the Supreme Court. Maybe he's been asked, but why would he give up a tenured gig at Yale to come down to Washington, even if a seat on the Supreme Court is tenured as well?

Buy both of these books and read them carefully. You will emerge with a greater understanding of the document and our society. And speaking of Biography, I've given my hard-copy version to a friend and replacing it with the Kindle version. Both books deserve re-reading.

12 of 15 people found the following review helpful

4.0 out of 5 stars Amazing Book September 18, 2012

By Appellate Advocate

Format:Kindle Edition|Amazon Verified Purchase

This is a great book; however, the footnotes aren't numbered, at least in the copy I got for my Kindle Fire. Hope this can be fixed soon. It is quite annoying to click on a note, only to be taken to a page of dense text without any way to tell where one note ends, and another begins.